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VOL. 1. 








Entered accordiug to Act of Congress in the year 1854, by 


In the Clerk's Office of the District Court for the District of Illinois. 

Entered according to Act of Congress in the year 1870, by 


In the Qerk's Office of the Distinct Court of the United States for the Eastern 
District of Missouri . 

Economical Printing Co., 

3rd. & Walnut Sts. 

St. Louis, 













In case the Appellant or PlaintiflF in Error shall 
neglect to file an abstract in compliance with the 
rules of this Court, the opposite party may file the 
abstract and prepare the cause for a hearing ex parte ^ 
and have the costs taxed therefor, provided the Ap- 
pellant or Plaintift' in Error would have been entitled 
to have the cause heard at the same term. 



Adair v. Maxwell 98 

Armstrong v. Mock 166 

Akiu etal. ex relatione v. Matteson.167 

Alvord V. Ashley 363 

Ashbaugh v. Ashbaugb 476 


Biehl V. Glick 35 

Brigham et al v. Hawley 38 

Bond V. Bragg et al 69 

Bradford v. Jones, Executor 93 

Browning t). City of Springfield 143 

Booth et al. v. Rives 175 

Brady, Adm'x, &c. v. Thompson, 

impl . &c 270 

Batterton et al «. Yoakum 288 

Bowers v. People 373 

Bergen v. Same 426 

Bonney v. Smith 531 

Barnett et al v. Smith r)65 

Bradley v. Geiselman 571 

Bestor v, Phelps et al 592 


Cross V. Pinckneyville Mill Co 54 

Christy v. PuUiam 59 

Chicago. Burlington & Quincy R. 

R. Co. t). Wilson 123 

Cannady v. People 158 

Cadwell v. Meek et al 220 

Crull et ux. v. Keener, Ex'r &c. ..246 

Cost et al. -v. Rose et al 276 

Castle et al. v. Judson et al 381 

Carpenter et al. ». Hoyt et al 529 

Central Military Tract R. R. Co. v. 

Rockafellow 541 

Cunningham v. Loomis et al 555 


Dickerson v. Sparks 178 

Dickson v. People ex rel. Brown. .191 

Davis V . Scarritt 202 

Dickerson v. Sprague 246 

Doan et al v. Duncan 272 

Dimon v. People 416 


Ex parte "Welsh 161 

Ex relatione Akin et al. v. Matteson.167 

Eddy et al. v. Roberts 505 

Eachus V. Trustees ot lU. and Mich. 
Canal 534 


Friuk et al. i\ Potter 406 

Foltz, Adm'r, v. Pi'ouse 487 

Follansbee v. Kilbreth et al 522 


Glenn et al. v. People 105 

Great "Western R. R. Co. v. Thomp- 
son 131 

Green et al. v. Oakes 249 

Green et al. ■;;. "Wardwell et al 278 

Gray et al. v. McLean et al 404 

Greenleaf r. Roe 474 

Galena and Chicago Union R. R. 

Co. V. Yarwood 5^9 

Greenough et al. «. Taylor et al. . .602 


Hall D. Hai-per 82 

Hite V. "Wells 88 

Hildreth v. Turner 184 

Hitchcock, on motion to quash, &c. 
V. Roney 231 




Hanna et al. ■;;. Yocum, Adm'r, &c. .387 

Holmes i\ Stateler 453 

Holmes v. Stummel 455 

Haywood et al. i\ Hannon et al 477 

Howe et al. v Harroun 494 

Hunt et al v. Blodgett 583 

Hugh i). Rawson 588 

Illinois Central E. E. Co. v. County 

of JMcLean et al 291 

Iglehart v. Pitcher 307 

Illinois Central R. R. Co. i\ Cassel 

etal 389 

Same v. Reedy 580 


Jennings et al. «. McConnel et al. .148 

Jones V. Smith et al 263 

Johnson v. Richardson et al 302 

Jones v. Goodrich 380 

Johnson v. Dodge 433 


Kirkham et al. v. Justice et al 107 


Lane t. Bommelman 95 

Lucas r . Driver 109 

Lawrence v. People 172 

Loomis et al. v. Francis, use, &c ..206 
Laflin v. Herriugtou et al 399 


McClure v. Englehardt 47 

MoiTis V. Thomas 112 

Myers et al. v. Turner 179 

Moore, impl., &c. v. Vail 185 

Moore, impl., &c. v. Dodd 185 

MiirrayYtal. v. Whittaker et al. . . .230 
Mitchell, Adm'r, &c. v. Jacobs et al.235 

McCoenel v. Street et al 253 

Manning et al v. Warren et al 267 

McAUister I'. SmiUi et al 328 

McCounell v. Brillhart 354 

McDonnell v. 01 well et al 375 

Morgan v. Green 395 

McClellan v. Kellogg 498 

Napper"et al. v. Short, Executor . . 119 

Newkirk v. Chapron 344 

Newlan v. President, &c, of Town 
of Aurora 379 


Newkirk v . Dalton et al 413 

Nelson et al. r . Cook 443 

Norton et al. v. Studley 556 


Osborne etal. v. Horine 92 

Oliver v. Chicago and Aurora R. R. 
Co 58"^ 


People ex rel. Pickering v . Devin 

et al 84 

Phillips et al. v. Coffee 154 

People V. Phelps 200 

Parsons v. Evans 238 

President, &c. of Town of Mt. Ster- 
ling i\ Givens 255 

Peoria and Oquawka R. R. Co. v. 

Eltlng 429 

People, use, &c. v. Bradley et al . .485 
Porter v. Boardman et al 594 


Russell V. Pickering 31 

Ridgway et al. v. Smith 33 

Ryan, surviv. Assignee, r. Dunlup 

et al 40 

Richey v. McBean .• . 63 

Ridgway v. Grant 117 

Reynolds v. Thomas et al 207 

Ruffner v. McCounell et al 212 

Rose V. Buckland 309 

Reed v. Bradley et al 321 

Roosa ?;. Crist 450 

Rose V, Mortimer 475 

Rae V. Hulbejt et al 572 


Starkey v. People 17 

Songer v. County Court ol Gallatin 

county 53 

Smith et al. v. Kahili 67 

Stewart *. Howe 71 

Stetham v. Shoultz - 99 

Smith Adm'r, et al. v. McCounell 

etal 135 

Skelley v. Kahn 170 

Shadley et al. v. People 252 

Steigleman et al. r. McBride 300 

Simons v. Waterman 371 

Sammis v. Clark et al 398 

Stacey v. Randall : . . , 467 

Shirley v. Phillips et al 471 




Smith, use, &c. v. Smith, impl. &C.482 
Scarls V. Munson 558 


Thatcher v. Thatcher 66 

Turley v. County of Logan 151 

Thorpe v. Starr, Adm'r 199 

Trustees of Schools, &c. v. Douglas 
etal 209 


Vanlandingham v. Ryan 25 

Vaughan v. Thompson 78 


Weinz v. Dopier Ill 

"Welsh, ex paite 161 

Wells V. Head 204 


"Woods V. Gilson 218 

Warner et al. v. Manski 234 

Waggoner v. Cooley et al 239 

Whiteside et al. v. Tuustall 258 

Weiner v. Heintz et al 259 

Weightman et al. -y. Hatch 281 

Whittemore v. Buckland 309 

Welsh et al. v. People 339 

Williams v. Chapman et al 423 

Webster v. Cobb 459 

Wiley et al. v. Platter 538 

Waugh v. People 561 

Winchell v. Strong 597 


Zarresseller ii. People 101 







Hugh R. Staeket, Plaintiff in Error, v. The People. 

Dying declarations are such as are made, relating to the facts of an injury of 
which the party afterwards dies, under the fixed belief and moral conviction that 
immediate death is inevitable, without opportunity for repentance and without, 
hope of escaping the impending danger (a). 

The court should determine vxpou the admissibility of such declarations upon 
hearing proof of the condition of mind of the deceased at the time they were 
made. Which proofs, it is advised, should notbe taken in the hearing' of the 
jury impanneled to try the accused. 

The substance of dying declarations may be given in evidence to the jury ; and, 
if necessary, through interpreters. 

If dying declarations are permitted to go to the jury, then also may they hear the 
whole evidence as to the condition of mind of the deceased and other circum- 
stances atthe time they were made^ and pass upon their credibility and weight. 

This indictment was tried before Baugh, Judge, and a Jury, 
at December term, 1854, of tbe Gallatin Circuit Court. 

N. L. Freeman, for Plaintiff in Error. 

J. S. Robinson, for The People. 

Skinner, J. Starkey was indicted in the Gallatin Circuit 
Court for the murder of Pohlman. 

He was found guilty of murder and sentenced by the court. 
A motion for a new trial was overruled. A writ of error was 
sued out and a supersedeas awarded. 

(a) Such declarations are admitted only in public prosecution for felonious homi- 
cide. Tiic Chicago and Great Eastern Railway company et al. vs. Marshall, .lU. Su-- 
preme Court, April term, 1859. 

ILL. REP. — XVII. — 1 


Starkey v. The People. 

The several assignments of error will be noticed in their or 
der. The first assignment questions the decision of the court in 
admitting the statements of the deceased made to Lawrence, 
Izerman, as to the infliction of the wound causing his death 
as dying declarations. 

The testimony upon which the court admitted these declara- 
tions was substantially as follows : 

LaAvrence Izerman testified that he saw the deceased on the 
evening of the day he was hurt ; that the deceased sent. for him, 
as they were both Germans, and there were no Germans where 
the deceased then was ; that the deceased showed his wound to 
witness, and said he was very bad and could not get through his 
life with it ; that he must die. 

The witness did not say the deceased said he must die, until 
the court had twice decided that the declarations were inadmissi- 
ble, and after repeated questions by the prosecuting attorney and 
the court, the witness, who was a German and spoke through 
an interpreter, said deceased told him he had a dangerous wound 
and must die for it ; the witness understood English imperfectly. 
He stated that deceased was in bed, calm, and spoke slowly, 
that the deceased did not ask for any thing to be done for him, 
but the persons about the house were dressing his wound. 

Dr. Corwin testified that he was a physician, and on the Sat- 
urday afternoon after the deceased was wounded, witness went 
to visit a boy next door to where deceased was, and was called 
in to see deceased, and examined the wound externally, but did 
not probe the wound to ascertain its depth. 

Could not say whether the wound entered the cavity. The 
wound was on the left breast just above the nipple. There are 
two symptoms to show that the cavity is entered, neither of which 
symptoms existed in this case, so far as witness ascertained. 
When witness then went to see deceased, he, the deceased, came 
down the stairs to the witness ; the deceased could not speak 
English, and witness told him through an interpreter to remain 
quiet, and not move about. Witness did not think at that time 
that the probabilities were against the recovery of the patient ; 
that he did not then think the wound mortal, if by mortal wound 
is meant that the stronger probabilities were against a recovery. 
Witness did not at any time communicate to the deceased that 
he would die. 

Witness called again to see the deceased on the Sunday after 
the Saturday mentioned, when the deceased went out on the 
porch for witness to see him ; witness upbraided deceased for 
not keeping quiet. 

On the next day, Monday, witness saw deceased again — and 
gaain on the Wednesday following, at which last time deceased 

NOVEMBER TERM, 1855. 1^ 

Starkey v. The People. 

came into tlie next house where witness was attending on the 
boy mentioned. Witness understood that on the day before, 
which was Tuesday, the deceased had ridden to Shawneetown, 
seven miles, and back, on a mule. 

The wound mentioned was in a dangerous place, but witness 
did not communicate to the deceased any thing about it, except 
to caution him to keep quiet. The weather at the time was very 
warm, and the deceased was very imprudent in riding to Shaw- 
neetown as he did. 

Peter Baker testified before the court, that on the Tuesday 
following the Thursday on which the deceased was wounded, 
he, the deceased, rode on a mule from the Saline mines to Shaw- 
neetown, a distance of six or seven miles, and back again. This 
was in July or August, 1854. The deceased then told the wit- 
ness that he had come up to testify against the prisoner, so that 
if he should die, it would be known who hurt him. The de- 
ceased then stated to Baker the circumstances of his injury and 
that he feared he should not recover. 

Mrs. Day testified that the deceased was a German working 
at the Saline mines, and boarded at her house ; that the deceased 
came home to her house wounded on the Thursday night as men- 
tioned ; that he lived eight days, ani died on the next Thursday 
night, late in the night. That witness was from home most of 
the day on the Thursday the deceased died, but got back before 
supper. The deceased was at supper and ate very heartily. 
She saw nothing very unusual in his appearance then — he went 
up stairs to bed in a room by himself, as he had done for several 
nights before. Witness put a cup of water by his bed, and then 
retired for the night. The deceased made no request, but du- 
ring the night she heard him walking about up stairs as he had 
done before since he was wounded. Witness always gave de- 
ceased what he wanted during his illness. Witness said that 
she noticed the mind of deceased to change on the Monday be- 
fore he died, but he had his senses and talked well enough after 
Monday night. On that Moaday night the deceased came down 
the stairs and passed through the room where witness was, with- 
out saying any thing, and went out of doors ; he soon returned 
with a neighbor, who asked what was the matter, and witness 
remarked, nothing. The neighbor then said Pohlman, the de- 
ceased, was raving ; that he, the deceased, had imagined he saw 
two men coming across the hill with a lantern to beat him. Wit- 
ness then told the deceased that there was nothing the matter 
and to go to bed. 

The second assignment of error questions the decision of the 
court in admitting, as dying declarations, statements made to 
Joseph Eick, by the deceased, on the afternoon of the day pre- 


Starkey v. The People. 

vious to his death. The evidence upon which these statements 
were admitted was substantially the same as that upon which 
the sta.ements made to Izerman were admitted, with the addi- 
tion of the evidence of Eick, which was substantially as follows: 

Joseph Eick, a German, and who could not speak English, 
testified, through an interpreter, that he had a conversation with 
the deceased about three, o'clock on the Thursday afternoon be- 
fore he died ; that he died the next morning about three or four 
o'clock ; that deceased then told him he had a dangerous wound 
and must die ; that deceased was much frightened at the time, 
and told witness that nothing could help him. He did not say 
he wished to tell witness anything, but did tell witness about 
his hurt ; that the conversation took place at witness' house, 
about thirty yards from where deceased boarded ; that deceased 
did not appear to be in his senses, but was only nervous and 
short breathed ; that he was in a good deal of fright, and said 
he came for a kind of relief ; that deceased walked to witness' 
house by himself and stayed there about half an hour ; that when 
deceased left he shook hands with witness and said: brother, 
we shall not meet any more, but did not say when he expected 
to die. 

This testimony was given through interpeters who some times 
differed in the words used by ^ the witness, and the witness, be- 
fore he testified, was told by the court to give the exact words 
of deceased, if he could, and if he could not, to give the sub- 
stance of what he said. 

These two assignments of error may be considered and dis- 
posed of together. The statements of the deceased as to the 
cause of the injury from which death finally results, when dying 
declarations within the meaning of the law, are admitted in evi- 
dence on the ground of necessity, and the rule under which they 
are admitted, forms an exception in the law of evidence. The 
accused, under the rule has not the benefit of "meeting the wit- 
ness against him face to face ;" a constitutional right in all crim- 
inal trials with this solitary exception. He is deprived of the 
security of an oath attended with consequences of temporal pun- 
ishment for perjury. He is deprived of the great safeguard 
against misrepresentation and misapprehension — the power of 
cross-examination. The evidence is hearsay in its character ; 
the statements are liable to be misunderstood and to be misre- 
peated upon the trial, and the evidence goes to the jury with 
surroundings tending to produce upon the mind emotions of deep 
sympathy for the deceased, and of involuntary resentment against 
the accused. 

It is vain to attempt to disguise the infirmities and imperfee- 
tions of the human mind, and its susceptibility to false impres- 

NOVEMBER TERM, 1855. 21 

Starkey «. The People. 

sions, under circumstances touching the heart and exciting the 
sympathies ; and the law has wisely, in case of dying declara- 
tions, required all the guaranties of truth the nature of the case 
admits of. The principle upon which such declarations are ad- 
mitted is thatt hey are made in a condition so solemn and awful 
as to exclude the supposition that the party making them could 
have been influenced by malice, revenge, or any concievable mo- 
tive to misrepresent, and when every inducement, emotion and 
motive is to speak the truth. In other words, in view of 
impending death and under the sanctions of a moral sense of 
certain and just retribution. 

Dying declarations are, therefore, such as are made by the 
party, relating to the facts of the injury of which he afterwards 
dies, under the fixed belief and moral conviction that his death 
is impending and certain to follow almost immediately, without 
opportuninity for repentance, and in the absence of all hope of 
avoidance ; when he has despaired of life and looks to death as 
inevitable and at hand. 1 Phillips' Ev. 235; Roscoe's Cr. Ev. 
29, 30, 31 ; 2 Starkie's Ev. 262 ; 1 Chitty's Cr. Law 569 ; 2 
Russ on Cr. 683, 684 ; 1 Greenleaf's Ev. 156 and 158 ; Swift's 
Ev. 124 ; McNally's Ev. 384 ; Wharton's Cr. Law 308 ; Mont- 
gomery against The State, 11 Ohio 424 ; State v. Moody, 2 Hay- 
wood 189 ; Smith t). The State, 9 Humphrey 17 ; Rex i\ Van 
Butchell, 3 Car. & Payne 495 ; Nelson ^^ The State, 7 Hum- 
phrey 583 ; McDaniel Ti. The State, 8 Smedes and Marsh. 415; 
Hill's case, 2 Grattan 608 ; Campbell y. The State, 11 Geo. 
374; The People i\ Knickerbocker, 1 Parker's Cr. R. 306 ; The 
sam e y. Green, Ibid 11. 

It is for the court in the first instance to determine upon the 
admissibility of the declarations, upon proof of the condition of 
mind of the deceased at the time they were made ; and if the 
proof does not satisfy the court beyond reasonable doubt, that 
they were made in ea^/re/wzVy, and that they are dying declara- 
tions within the law, they should not be permitted to go to the 
jury. There can be no question that, tested by the principles 
here laid down, the declarations made by deceased Izerman 
are not dying declarations, and we proceed directly to examine 
as to the declarations made to Eick. 

Taking the words of the deceased, that he "had a dangerous 
wound and must die," and the remark, on parting with Eick, 
"that they would never meet again," without looking to the at- 
tending facts and circumstances we should unhesitatingly conclude 
that the impression was upon his mind that he soon should die. 

The mere declarations or statements of the deceased as to 
his condition and expectation are not the only test from w^hich 
to ascertain his true state of mind in this respect, but the court 


Starkey v. The People. 

should look not only to his language but to all the facts existing 
and surrounding the party at the time, before and after the 
declarations were made, forming the re^ geslw and tending to 
show his true state of mind. 

Words alone are too uncertain and unreliable, and recourse 
must be had for more satisfactory elucidation, to the attending 
facts and circumstances. These are : that the deceased had 
received the wound eight days previous to his death ; that on 
the day he was wounded he stated that he must die ; that he 
returned to his boarding place, and that some three days after a 
physician, being in attendance on a sick person near by, was 
called to see hinj ; that deceased came down stairs and met the 
physician; that the physician, some four days after the injury, 
again saw deceased, and again on the day before he died ; that 
the physician did not find the ordinary indications of a mortal 
wound, and did not regard the wound mortal ; that he did not 
inform deceased that his wound was dangerous, but upbraided 
him for imprudence in going about ; that deceased, on the Tues- 
day preceding the Thursday 6n which he died, rode on a mule 
in very warm weather some seven miles and back, and then 
stated to Baker that he feared he should not recover ; thau 
during his illness he was accustomed to walk about ; that on 
the day before he died he walked to Eick's and returned the 
same way ; that the evening before he died, and after being at 
Eick's, he went to supper with the family and ate very heartily ; 
that he stated to Izerman, on the day of the injury, that he 
must die, when all the attending circumstances exclude the idea 
that he then was without hope of recovery ; that he attempted 
no known preparation for death, and made no arrangements 
concerning family, friends, or property, although he had abund- 
ant opportunity. 

From all this we do not doubt that the deceased, at the time 
he made the statements to Eick, had serious fears that he would 
not recover, but that he regarded himself a dying man and was 
without hope of recovery, we are not satisfied ; nor do e think 
the proof justified their admission as dying declarations. 

The danger of sacrificing innocence to too great credulity 
where the human sympathies are wrought upon, and where the 
evidence, in its very nature, must be without the most reliable 
guaranties of truth, admonishes us that it is better to err in 
favor of than against life. The third assignment of erorr chal- 
lenges the decision of the Circuit Court in permitting witnesses 
to state the substance of what the deceased said as to his appre- 
hensions of death, and in admitting the same through interper- 
ters who sometimes difi"ered in their rendition of German words 
into English. In this we find no error. 

NOVEMBER TERM, 1855. 23 

Starkey v. The People. 

A denial of testimony through the medium of interpreters 
where the witness cannot speak the language of the court, or to 
require the witness to give the exact words of another, would 
often be equivalent to a denial of justice. However desirable 
in a case like this it may be to obtain the very words of the 
deceased, and to obtain them directly from the witness who 
heard them spoken, to avoid misapprehension and perversion, 
yet such a requisition would assume a perfection in the adminis- 
tration of justice unattainable by human tribunals. 

A conscientious witness will rarely undertake, under oath, to 
give the exact words of another spoken at another time and on 
a different and remote occasion. The substance of the words, 
if the exact words cannot be given, is all the law requires. 
Montgomery -o. The State, 11 Ohio 424; Nelson v. The State, 
13 Smedes and Marsh. 500. 

And this is consistent with the analogies of the law in proof 
of admissions and confessions. Iglehart t). Jernegan, 16 111. 
613. The Circuit Court refused to allow the prisoner to prove 
to the jury the statements of the deceased as to his apprehen- 
sion of death, and also prove his conduct aud state of mind 
at the time of making the declarations, held by the court to be 
dying declarations. And upon this decision arises the fourth 
assignment of error. 

It is admitted that it is for the court, in the first instance, 
upon a preliminary examination, to decide upon the competency 
or admissibility of the declarations. 

The declarations, however, being admitted, the whole evidence, 
including that heard by the court as to the condition of mind of 
the deceased at the time they were made, should then go to the 
jury, to enable them advisedly, and from all the lights the facts 
and circumstances afford, to determine upon the credibility, 
weight and force of the evidence. 

The condition and state of mind of the deceased, with all 
attending circumstances bearing upon the question, are proper 
for their consideration ; and there is no ground upon principle 
or authority for excluding from their consideration the state- 
ments of the deceased as to his apprehension of death, nor of 
the surrounding circumstances forming the res gestse and tend- 
ing to establish the existence or non-existence of that condition 
of mind which would constitute his statements as to the cause 
of the injury inlaw, dying declarations. 1 Greenleaf's Ev. 160 ; 
1 Phillips' Ev. 238 ; 2 Starkie's Ev. 263 ; Roscoe's Cr. Ev. 34 ; 
Lambert v. The State, 23 Miss. R. 355 ; Nelson i). The State, 
13 Smedes and Marsh. 506 ; State v. Thawley, 4 Harrington, 562. 
It is a legal maxim, " that the law is for the court and the 
facts for the jury, " and as a general rule, where the soeurity 


Starkey i. The People. 

involves both law and fact, the jury must determine the question 
upon the facts by 'them found, under the law as pronounced by 
the court, but subject of necessity, to the final judgment of the 
court on motion for a new trial. 

From the province of the jury to determine upon the credi- 
bility, weight and effect of the whole, or any part of the evi- 
dence, it follows, that they may take into consideration the 
state of mind and actual condition of the deceased as to his 
apprehensions of impending dissolution, and give to the declar- 
ations such weight as to them they seem to deserve. 

In England, as late as 1789, it was held that the question as 
to whether the declarations were dying declarations, was a mixed 
question of law and fact to be determined by the jury under the 
law as given them by the court, without a preliminary examina- 
tion and^decision by the court. Woodcock's Case, Leach's Crown 
Law 500. Afterwards it was held to be a question for the 
court and not for the 'jury, and to be determined as a mere 
question ol competency. Melbourne's Case, 1 East's PL of the 
Crown 358. 

The great caution sanctioned by the books in regard to this 
kind of evidence, would seem to demand a rule of practice uni- 
form, free of embarrassment and nice distinction, and which in 
it3 operation will not deprive the jury of any fact or circum 
stance tending to enlighten them upon the main point of inquiry 
— the guilt or innocence of the accused. We are therefore 
inclined to adopt the rule laid down in Campbell -y. The State 
of Georgia, 11 Geo. R. 353 ; The People n. Green , 1 Parker's 
Cr. R, 11 ; The State of Wisconsin v. Cameron, 3 Chandler's 
R. 172, and substantially recognized in many other cases, that 
the question of the competency of the alleged dying declara- 
tions as evidence, is in the first place to be determined by the 
court upon a preliminary examination, and the declarations 
being admitted to the jury, it is for them upon consideration of 
the whole evidence, including that heard by the court upon the 
question of competency, and in determining upon the guilt of 
the accused, to take into consideration the state of mind of the 
deceased as to his apprehension of death, and finally determine 
this, and consequently the force of the declaration as any other 
question of fact, under the law as given them by the court, [a] 

It is also assio-ned for error, that the Circuit Court heard the 
evidence upon the preliminary examination as to the state of mind 
of the deceased, involving the admissibility of his declarations 
as to the injury, in the presence and hearing of the jury, and 
against the objection of the prisoner. 

Upon this record we are not compelled to decide upon this 
rulmg of the court ; but the impossibility of knowing what 

(a) Murphy v». People, 37 m. R. 456. 

NOVEMBEK TERM, 1853. 25 

Vanlandingham v. Ryan. 

effect upon the minds of the jury the hearing of this examina- 
tion might have, or what tinge or coloring it might in their 
minds give to other evidence against the accused, in case the 
declarations should uot go to them finally as evidence, would 
suggest the propriety of sending the jury out in charge of a 
sworn officer, pending this examination. 

And this practice has been approved wherever the question, 
to our knowledge, has arisen. Hill's case, 2 Grattan 611 ; 
Smith t\ The State, 9 Humphrey 17. 

Judgment reversed and cause remanded for a new trial. 

Judgment reversed. 

ScATES, C. J. I am of opinion that the evidence on the pre- 
liminary examination before the court was sufficient to show the 
competency of the statements of deceased last made, as dying 

It is with great doubt and hesitancy that I concur in admit- 
ting the same facts, circumstances and declarations of the 
deceased, offered to the court, on the questions of competency 
to be again proven before the jury, for the purpose of impeach- 
ing the testimony of deceased, by showing the non existence 
of the very point determined by the court on the question of 
competency ; that the deceased made them under the conscien- 
tiousness and apprehension of impending dissolution, which is 
in law, substituted for an oath. I regard the contrary doctrin 
to be supported by the current of authorities and general prac- 
tice, but put my concurrence in the authorities cited-, and the 
opinion of the court upon a tender regard for life. 

Oliver C. Vanlaxdingham, Plaintiff in Error, v. Ebenezer 
Z. Ryan, Surviving Assignee, &c. 


A plea of failure of consideration should set out what the consideration was, orin 
what particular it failed. 

"Whatever the parties choose to present in issue, by their pleadings and proofs, 
whether of law or fact, ought to conclude them from another suit,if such plead- 
ings and proofs present tbe merits of the controversy. 

A demurrer to a good plea in bar will estop a plaintitf from raisingthe same issue 
in another suit. 

A judgment upon a demurrer, for defect in the pleadings, will not bar another 
action for the same cause . 


Vaalandingham v. Ryan. 

"WTien, by a defect in pleading, the merits of an action or defence were not pre- 
sented, a plea of former recovery will not be a bar to a second action. 

But if the cause of action is well set forth, and a judgment proceed upon the 
ground that the action will not lie,the party will be concluded and barred by 
the issue of laws raised by his pleading. 

This cause was tried before Baugh, Judge, without the inter- 
vention of a jury, at December t erm, 1854, of the Gallatin 
Circuit Court. Verdict and judgment for plaintiff in the court 
below. The defendant below brought the cause to this court 
and assigned errors. 

N. L. Freeman and W. H. Underwood, for Plaintiff in Error. 
W. Thomas, for Defendant in Error. 

This was an action of debt, commenced in the Gallatin Circuit 
Court, by foreign attachment, at the suit of Ryan, surviving as- 
signee of the Bank of Illinois, against Vanlandingham, upon two 
promissory notes for $2,000 each. 

The defendant below filed twelve pleas in bar. The fourth 
pica set forth that there was no consideration for the execution 
of the notes sued on. To which there was a demurrer overruled, 
and a replication, that the notes " were not made for no consid- 
eration." To this replication there was a demurrer. 

The fifth plea set forth a suit on the same notes in the Circuit 
Court of Vanderburg county, Indiana, and a judgment therein in 
favor of the defendant below. To this plea there was a de- 
murrer, which was sustained. 

The seventh plea sets up the same matter as the fifth, which 
was also demurred to and the demurrer sustained. 

The eighth plea sets up that the notes sued on were stock 
notes, and that they were no debts, nor causes of action exist- 
ing, at the commencement of the suit, against the Bank or the 
assignees. To this plea there was a replication admitting that 
the notes were stock notes, but denying that they were on debts 
owing by the Bank or the assignees. To the replication there 
was a demurrer, which was carried back and sustained to the 
eighth plea. 

The tenth plea sets up a former recovery upon the same notes 
in St. Clair county. To this plea two replications were filed — 
First, nul iiel record. Second, setting up specially that the St. 
Clair judgment was under foreign attachment levied on real 
estate, without service or appearance. To this last replication 
a demurrer was overruled. 

The ninth plea sets up a prior suit on the same notes in the 
Circuit Court of Vanderburg county, Indiana, and judgment 


Vanlaudingham v. Ryan. 

therein in favor of defendant below. To this plea a demurrer 
was sustained. 

The thirteenth plea sets up a prior suit upon the same notes, 
and shows a final judgment in favor of the defendant below upon 
demuiTer. To this plea there was a demurrer which was over- 
ruled. The plaintiff below then filed two replications to the 
thirteenth plea. First, nul tiel record. Second, admitting the 
proceedings in the suit in Vanderburg county, Indiana, alleging 
that the decision was upon a special demurrer to the complaint 
of the plaintiff in that suit ; that there was no issue of law or 
fact formed, nor any judgment or trial upon the question whether 
the defendant owed the debt. There was a demurrer to the two 
replications, and the demurrer overruled. The defendant below 
then filed rejoinders to said replications. To the first, that 
there was such a record, &c., and to the second replication re- 
affirming in general the thirteenth plea. To the rejoinder to 
said second replication there was a demurrer, and that demui'rer 
was sustained. Said rejoinder was afterwards amended, and 
again a demurrer was sustained to it. 

During the trial the plaintiff below offered in evidence a sched- 
ule of debts assigned by the Bank to A. G. Caldwell, which 
showed that the notes sued on were by that instrument assigned 
to said Caldwell alone, and his receipt is attached to the same, 
and the same is certified by the president and cashier. To this 
evidence the defendant objected, and the court overruled the ob- 
jection and the defendant excepted. 

The plaintiff below also offered in evidence two promissory 
notes made by Vanlandingham to the Bank upon which there 
was no assignment. The court received them against objection 
and the defeudant excepted. 

The plaintiff below offered in evidence a deed of assignment 
from th€ Bank to Caldwell and Ryan, bearing date on the same 
day with the schedule or transfer of the notes sued on, to Cald- 
well, which deed purports to assign to Caldwell and Ryan all 
the personal estate, rights and credits, notes, bonds, judgments, 
and dabts of every kind due to said Bank ai Shawneetown, and 
the branch at Lawrenceville. The court overruled the defend- 
ant's objection to said: deed of assignment and allowed the same 
to be read in evidence, to which the defendant excepted. 

ScATES, C. J. Of the twenty assignments of error, we shall 
only notice such as are deemed necessary to a determination of 
this case. 

The first and second assignments of error are not sustainable, 
and were abandoned on the argument. 

The questions raised upon the admissibility of the schedule 


Yanlandingham v, Ryan . 

and assignment of the bank to assignees, we think were without 
foundation. The demurrer was properly sustaind to the sixth 
plea, for it alleged a failure of consideration, without setting 
forth what the consideration was, or in what particular it failed. 

The principal question presented by the record is upon a 
former recovery ; and this is set up in five different pleas. The 
fifth, seventh, ninth and thirteenth set up a recovery by defend- 
ant, in a suit by attachment against him, in Vanderburg county, 
Indiana ; and the tenth a recovery against him by attachments, 
in St. Clair county, Illinois. The fifth, seventh and tenth pleas 
may be laid out of view, as there are not sufficient averments to 
present a good bar ; so, indeed, we may waive any consideration 
of the ninth, as the thirteenth embraces more, and the questions 
are more fully presented in it, and the replication thereto and 

Upon this point the general maxim of law is, expedit reip-'tb- 
licse ut fit finis litiuvi, and, therefore, nemodehetbisvexaripro 
una et eadem cau^a. One application of the first isfound in the 
limitation of actions ; and the last is enforced by holding judg- 
ments to bar a second suit for matters litigated and settled in the 
first. There is great uniformity in the adoption of the rule by 
the courts ; but more or less diversity in its application under 
different states of pleading, and to particular issues and the 
varying facts involved in their investigation. 

There are a few cases in which the courts have taken nice 
distinctions, apparently to enable parties to investigate anew 
matters neglected in former trials. Such was the case of Seddon 
et al., t). Tulop, 6 Term R. 607, and in which Lord Kenyon 
admits " that it is a question of great delicacy. We must take 
care not to tempt persons to try experiments in the action, and 
when they fail, to suffer them to bring- actions for the same 
demand." So in Smith v. Whithing, 11 Mass. R. 445, and Rave 
T). Farmer, 4 Term 146, and Golightlyy. Jellicoe in note *' a" of 
same case, where proofs were allowed to show that the matters 
apparent upon the face of the record and submissions, were 
really not investigated. But a stricter rule was applied in 
Markham v. Middleton, 2 Strange R. 1259 ; Outram v. More- 
wood, 3 East R. 346 ; The King, on the prosecution of Smith v. 
Taylor, 3 Barn. & Cress. R. 502, (10 Eng. C. L. R. 231 ;) Hess 
Exr. -y. Heebie, 6 Serg. Raw R. 58 ; Loring -y. Mansfield, 17 
Mass. R. 394 ; Ramsey & Vather -y. Herndon, 1 McLean R. 
450. And this rule, in its greater strictness, seemed to be ap- 
proved in Gray et al. v. Gillilan et al. 15 Ills. R, 454. But we 
do not sanction the technical distinction which makes a former 
recovery a bar only, when pleaded as an estoppel nor would 
we feel justified to follow Green -y. Clark, 5 Denio R. 505, and 

NOVEMBER TERM, 1855. 29 

Vanlandingham v. Ryan. 

Others of that class of decision, which would exclude parol 
evidence, not contradictory of the record, to show what was 
included within and investigated on the trial of the issue, or that 
the merits were not. In a great many cases the face of the 
record does not show the full and true state of the controversy 
and the matters investigated ; Wood v. Jackson, 8 Wend. R. 
35, 43 et seq. ; and parol evidence, must be admitted to supply 
what is not shown, or the same matters might be litigated repeat- 
edly. But when the whole is fully presented by the record and 
parol proofs, it is quite another view of it, to allow one of the 
parties to go on and show by parol, that a part of the case pre- 
sented by the pleadings was not investigted, or that the verdict 
or judgment was found or rendered upon a particular portion of 
the facts, or one of the several issues of law or faet. In the 
above case of Wood -y. Jackson, the Chancellor said: "The 
court will never go into an examination of the jurors in the 
former cause, to ascertain upon what ground their verdict was 
pronounced;" see also, Lawrence -y. Hunt, 10 Wend. R. 86. 
And this, in principle, was applied to the oral examination of 
the justice, as to what judgment he intended to enter. Zimmer- 
man Ts. Zimmerman, 15 Ills. R. 84. This court, in that case, 
sanctioned the general doctrine that a former recovery will con- 
stitute a bar of the same causes, as between parties and privies, 
where the court had jurisdiction general or special. If, then, 
neither the judge nor jurors can be called to show what portion 
of the case constituted the ground of decision, neither should 
other witnesses. What parties choose to present in issue, of 
law or fact, by their pleadings and proofs, ought to conclude 
them from another suit. This is true of issues of law, upon de- 
murrer, as well as of fact ; Brickhcad -». Brown, 5 Sandf . R. 
147 et seq. ; Lampen "o. Iledgewin, 1 Mod. R. 207 

Such is the doctrine, and the proper mode of present- 
ing the question of identity. But when we come to inquire 
into what matters are barred, we find the bar confined to those 
issues and facts which present the merits of the controversy. 
Wilber t). Gilmore, 21 Pick. 253. 

This presents another distinction as to how far particular 
issues of fact, and trials of them, may include the merits of the 
controvesy : And to what extent the bar will operate upon 
the subject of controversy when the pleadings present only cer- 
tain issues of law, upon which judgment is rendered As the 
question is raised here as one of the latter kind, upon demurrer, 
I shall confine the investigation to the latter class of authori- 

Upon this point the authorities agree that a judgment upon 
a demurrer for defect in the pleadings will not bar another 


Vanlandingham v. Ryan. 

action for the same cause. Lampen v. Hegdwni, 1 Mod. R. 
207; Gilman?). Rives, 10 Pet. R. 301; Wilbur t). Gilmore 
21 Pick. R. 253. 

So if the plaintiff be non-suited for want of proof, or because 
his allegaa and probata do not agree, or for any other cause, 
as by agreement after trial of the merits. Knox -w. Waldo- 
borought, 5 Maine R. 185. 

So if plaintiff mistake his cause of action — and for which 
cause a demurrer is sustained. 21 Pick. R. 253. 

These decisions proceed upon the ground that the judgment 
was upon defects in the pleadings to present merits of the 
cause of action or defence ; and consequently such judgment 
will not bar an investigation of the true merits of the contro- 
versy in another action. But at the same time if a demurrer is 
put in to a good plea in bar, it will estop the plaintiff, although 
his declaration is defective — because his demurrer confesses the 
grounds of defence. 1 Mod. 207 ; 10 Pet. 301. 

So under this last state of the pleadings it will depend upon 
the sufficiency of the plea, and not the declaration, whether the 
judgment will operate as a bar or estoppel. 

But we are not to be understood as saying that a judgment 
upon a demurrer to the declaration, or sustained to the declar- 
ation, can in no case, operate, or be pleadable in bar as an 
estoppel. For itmay be that the cause of action is well set 
forth — and the judgment proceed upon the ground that the 
cause is not sufficient to sustain action. I should hold such 
judgment a bar to another action varying the statements and 
allegations — or changing even the iorm of the action. Such 
decision would be upon the merits, and very right set up — and 
may as well be determined, concluded and barred on an issue 
of law by demurrer, as upon an issue of fact. 

Such seems to me to be the issues of law presented by the 
thirteenth plea, and the replication and rejoinder. 

Although the suit was by foreign attachment and construc- 
tive service, the defendant subjected himself personally to the 
jurisdiction of the court by authorizing his appearance, and 
demurring to the declaration. So a general judgment in pev- 
5onam could have been rendered in that cause, against either 
party, and binding and conclusive of such matters as were pre- 
sented. After showing this state of facts, the plea sets forth a 
demurrer to that action, with causes, a part of which, if true, 
show that the plaintiff had no cause of action, no right to sue 
upon the notes, because the notes were void ; and avers that the 
very right of action and merits were presented, tried and 
determined upon that issue. The plea seems to be sufficient, 
and plaintiff should have taken issue upon it. He, however, 

NOVEMBER TERM, 1855. 31 

Kussell V. Pickering. 

replied that no issue was made or tried upon the fact of the 
indebtedness and detention of the debt. The rejoinder reasserts 
the allegations of the plea, and to this the demurrer was sus- 
tained. If all the allegations and averments of the plea are 
true, the demurrer in the former suit admitted the main facts, 
but presented the broad question that there could te no indebt- 
edness under those facts, and that'the court so held. Under 
this view of the facts put in issue by the plea, the plaintiff 
should have taken issue by nul tiel record alone, as in his first 
replication. His second replication was faulty, in mearly tra- 
versing a part of the facts of the plea, instead of denying the 
existence of such a record. The demurrer should have been 
sustained to the replication. In this the court erred. The 
eighth plea is good, and the demurrer was improperly carried 
back and sustained to it. The plea sets up as a defence that 
there were no debts or causes of action existing against the 
President, Directors & Co. of the Bank, or against the assi gnees 
at the commencement of this suit. The ninth section of Act of 
1845, p. 247, contemplates a liability of the stockholders upon 
their stock notes and their coercive collection by the assignee 
as long as there may be liabilities of the bank to pay. If there 
be any such liabilities unpaid, whether it exist as a debt or 
cause of action against the president and directors, or the 
assignees, an action will lie. The board of directors was dis- 
solved ; they neither owe, nor can be sued as such ; so the 
assignees may as such owe and be sued on many liabilities. 
And these liabilities may subsist as debts against the institution, 
and be entitled to payment out of its assets, including these 
stock notes. The assignee should therefore have taken issue 
upon the facts alleged in this plea. 

Judgment reversed and cause remanded for further pleading, (a) 

Jud gment reversed. 

Laban G. Russell, Plaintiff in Error, v. Edward Picker- 
ing, Defendant in Error. 


The application for a certiorari to take an appeal from a judgment rendered be- 
fore ajusticeof the peace, must show the facts required by the statute ; the al- 
legations of the petitioner showing his conclusion will not be sufficient. 
Clerks of the Circuit Court are not bound to take appeals on Sunday. 

The opinion of the court furnishes a statement of the case. 

(o) Ryan Surv. assignee etc. , v». Vanlandingham et al. 25 111. R. 128. 


Eussell V. Pickering. 

The decision of the Circuit Court was made by Marshall, 
Judge, at {September term, 1852. 

C. H. Constable, for Plaintiff in Error. 
R. S. Nelson, for Defendant in Error. 

Skinneb, J. Pickering, on the 28th day of July, 1851, be- 
fore a justice of the peace of Edwards county, recovered a judg- 
ment against Russell for sixteen dollars. Russell, after the 
expiration of twenty days from the rendition of the judgment, 
removed the cause into the Circuit Court by certiorari. The Cir- 
cuit Court dismissed the certiorari for want of a sufficient petition. 

To entitle a party to this mode of appeal, under the statute, 
the petition must set forth and show upon the oath of the appli- 
cant, that the judgment before the justice of the peace was not 
the result of negligence of the party; that the same .is unjust 
and erroneous ; and that it was not in the power of the party to 
take an appeal in the ordinary way. These three facts must be 
shoivn by the petition, not merely alleged, as a conclusion of the 
party, (a) 

The petition in this case, does not attempt to show diligence 
in defending the suit before the justice, nor an excuse for not 
making such defence. The petition alleges as excuse for not 
taking an appeal in the ordinary way, that on the sixteenth day 
. of August, 1851, petitioner went to the office of the justice and 
prayed an appeal to the Circuit Court-., and tendered one Walker 
as his security ; that said Walker was possessed of one wagon of 
the value of forty dollars, one horse of the value of seventy dol- 
lars, one horse of the value of forty dollars, cattle of the value 
of twenty dollars, sheep of the value of ten dollars, hogs of the 
value of forty dollars, together with farming implements, crops, 
and so forth, and of a very valuable farm ; that the justice re- 
fused to approve the security offered, alleging for cause that the 
same was insufficient; that petitioner, on the 1 7th day of Au- 
gust, 1851, being Sunday, went to the clerk of the Circuit Court 
of Edwards county and prayed an appeal, and tendered one 
Rosevalt as his securitj', and that said clerk refused to do the 
business on Sunday, (a) 

It is the duty of a justice of the peace, in case of application 
for appeal from judgments rendered by him, to require sufficient 
security in the appeal bond, and he is required to approve of 
such security as he receives. R. S. 324, sec. 60. 

For aught that appears by the petition. Walker's property 
might not have been within the county, or state ; or he may 
have been so largely indebted as to have rendered the security 

(a) Cli££i)rd vs. "Waldrop, 23 Dl . R . 336. 

NOVEMBER TERM, 1855. * 33 

Riclgway et al. v. Smith. 

too precarious for official approval. Clerks of the circuit courts 
are not bound to take appeals on Sunday in the absence of stat- 
utory requisition, (a) 

Judgment affirmed. 

Thomas S. Ridgway et al., Plaintiffs in Error, -». Job 
Smith, Defendant in Error. 


"Where an affidavit for an attachment alleges that a defendant is about to remoT 
his property from this State to the injury of the plaintiff, and this allegation i 
traversed by a plea in abatement, it is not error on the trial of such a plea to 
instruct, that unless the jury believe, from the evidence, that the defendant 
was at that time about to remove hie property as alleged, that they should find 
for the defendant. 

Such a plea should conclude to the coimtry, and a common similiter forms the 
issue; the burden of proof is on the plaintiff to maintain the allegation of his 
affidavit ; and if the verdict is for the defendant, the writ is quashed, and he is 
out of court 

The opinion of the court gives a statement of the case. The 
plea was tried before Baugh, Judge, and a jury, at November 
term, 1854, of the Gallatin Circuit Court. The jury found for 
the defendant. The court awarded him costs, and quashed the 
writ of attachment. The plaintiffs below excepted and assigned 

Thomas and Olney for Plaintiffs in Error. 

Nelson and Marshall for Defendant in Error. 

Skinner, J. Peoples and Ridgway sued out of the Gallatin 
Circuit Court a writ of attachment against the estate of Smith. 
The writ was levied on a flatboat loaded with corn, and served 
on Smith by reading. 

The affidavit alleged an indebtedness from Smith to People 
and Ridgway of $1350, and that Smith was about to remove 
his property from this State, to the injury of Peoples and 

Smith appeared, and filed his plea in abatement, traversinsg 
the allegation of the affidavit, that he was about to remove his 
property from this State to their injury. 

Upon this plea an issue to the country was formed, and the 
jury found the issue for the defendant, Smith. 

(o) Mete, on Con. 254 &c ; Baxter vs. People, 3 Gil. R. 368 ; Johnson vs. People,. 
3im. R. 472 ; Mclntyi-e v« . People, 38 Ul. E. 521; Scammonw*. Chicago, 40 Id- 149. 

ILL. REP. — ^xvn. — 2. 


Ridgway et al. v. Smith. 

The court refused to instruct the jury, at the request of 
Peoples and Ridgway, that unless they beleived, from the 
evidence, that Smith at the time of suing out the writ, was not 
about to remove his property from this State to the injury of 
Peoples and Ridgway , they should find for the plaintiffs. But 
at the request of Smith, the court instinicted the jury that 
unless they believed from the evidence that at the time of 
suing out the writ. Smith was about to remove his 'property 
from this State to the injury of Peoples and Ridgway, they 
should find for the defendant. 

The evidence preserved in the bill of exceptions shows that 
Smith had long resided in Gallatin county ; that he carried on 
the saddlery business, and was in the habit of trading for pro- 
duce and taking the same to New Orleans for market ; that he 
was about to depart with his flatboat and cargo of corn for 
New Orleans, at the time of the issuing of the writ, with the 
intention of selling the same there and returning home with the 
proceeds ; that he was largely in debt, and that his property in 
Gallatin county, exclusive of the flatboat and cargo, Was 
insufficient to pay his debts. 

Peoples and Ridgway excepted to the uling of the court 
upon the instuctions, and moved for a new trial, which motion 
the court overruled, and rendered judgment against in., plain- 
tiffs for costs. 

We think there is' no error in the record. The statute pro- 
vides, " that in case any plea in abatement traversing the facts 
in the affidavit shall be filed, and a trial shall be had thereon, if 
the issue shall be found for the defendant, the attachment shall 
be quashed. " 

This plea traversing the facts in the affidavit alleged, should 
conclude to the country, and the common similiter only is required 
to form a complete issue of facts. The burden of proof upon 
this issue is on the plaintiffs ; and the court therefore did not err 
in refusing the instruction on the part of the plaintiffs below, (a.) 

The motion for a new trial was properly overruled. It is not 
every removal of one's property from the State that will entitle 
the creditor to a writ of attachment. The intended removal 
must be to the injury of the creditor, and it did not follow that 
because Smith was about to remove his flatboat and cargo from 
the State for the purpose of sale, and with the intention of 
returning with the proceeds, that such removal was to the injury 
of Peoples and Ridgway. This might have been and probably 
was necessary to enable him to pay their debt ; and if so, could 
not be to their injury . 

The statute should not be so construed as to interrupt or dis- 
courage the ordinary commerce of the country , or to enable ona 

(ffl) Eddy vs. Brady, 16 m. R. 307. 

NOVEMBER TERM, 1855. 35 

Biehli). Glick. 

creditor, to the exclusion of others, to seize and appropriate to 
the satisfaction of his debt the effects of an honest but embar- 
rassed and struggling debtor. This is the construction given 
the statute in the case of White et al., v. Wilson 5 Gil. 21, 
and we concur in the opinion of that case. 

The plaintiffs, however, contend that the effect of the finding 
for the defendant on the issue was only to release the property 
attached, and that the defendant being in court should have 
answered to the declaration. 

Such is not the law. The statute expressly provides that in 
such case the attachment shall be quashed, and the proper judg- 
ment, where the issue upon a plea in abatement is found for the 
defendant, always is, that the writ be quased. The defendant 
is then out of court. R. S. 65, Sec. 8. McKinstrey v. Pennoyer, 
1 Scam. 320 ; Bradshaw v. Morehouse, 1 Gil. 395 ; Motherell 

V. Beaver, 2 Gil. 69. (a) 

Judgment affirmed. 

Abraham Bibhl, Plaintiff in Error n. Benjamin ^Glick, 
Defendant in Error. 


"WTiere A. andB. owned adjoining premises and fixed a corner, as indicating the 
boundary between them, and A. afterwards built a house, which, if the corner 
agreed upon was the true one,!would have been upon his own land, but a line 
was run by the county surveyor, which placed the house upon the land of B- , 
whereupon A. bought the strip of land, so as to include his house ; andt hen 
filed his bill to recover back his purchase money, and to rescind the sale alleg- 
ing that the survey by the county surveyor was ivrong, and that the cornes a- 
greed up-^n in the first instance was the true boundary. Held, that this was 
not such a case of mistake of facts as would authorize "a decree in favor of A., 
who was seeking an undue advantage by his bill. ^ 

This bill alleges that Glick is owner of north half of north- 
east quarter of section 7, T. 1 N., R. 13W. ,and Biehl owner 
of west half of same section ; that complainant and defendant 
agreed upon the half section corner between them, and insertde 
a stone many years ago, which was acquiesced in until the begin- 
ning of 1850, when the county surveyor established that corner 
five chains further east, whereby Glick's house and barn, &c., 
were thrown on the land of Biehl ; that Glick paid Biehl $122 for 
a deed which was made, conveying the strip cut off by said sur- 
vey ; that Glick afterwards learned the survey was erroneous and 
that both he and def endandt had in the aforesaid purchase and 

(a) Eddy et al. v». Brady, 16 m. R. 306 ; Cushman vs. Savage, 20 lU, B. 330. 


Biehl V. Glick. 

conveyance acted under a mistake of facts. Bill prays that 
defendant be decreed to repay to complainant said sum of $125 
with interest from date of payment, that the deed be canceled, 
and that a monumeni be placed at the true corner, to perpetuate to 
and for general relief. 

The answer asserts that defendant knows nothing of Click's 
title — admits that defendant is owner of east half of north-west 
quarter of Section 7, T. IN., R. 13 W. — admits that parties 
differed as to corner and did agree four or five years ago to 
plant a stone at a point agreed upon — states that witness' trees 
are not to be seen — admits that subsequently to planting stone 
a survey was made, which threw Glick's house upon Biehl's land 
— that Glick applied to Biehl to purchase a portion of said east 
half of north-west quarter of Section 7, and that Biehl did accord- 
ingly execute a deed for same to Glick, for consideration of 
$125, which was paid by said Glick, and that Glick has had 
uninterrupted possession thereof since — denies that deed con- 
veyed any other lands than those to which Biehl had title — 
admits that Glick might have supposed that his dwelling hous 
was on respondents's land, and would not otherwise desire to pur- 
chase said ten acres and eighty-four hundreths, but expressly 
charges, that whether such dwelling w^as on respondent's land 
or not, Glick had as much knowledge on the subject as Biehl, 
and that there was no concealment or overreaching on part of 

The Circuit Court of Wabash county, at September term, 
1854, entered a decree rescinding the deed in question, direct- 
ing Biehl to refund the money paid for the ten acres, and 
awarded cost against him. Whereupon Biehl brought the case 
to this court, by writ of error. 

S. S. Marshall, for Plaintiff in Error. 

E. Beecher and H. B. Montgomery, for Defendant* in Error. 

Caton, J. We think such a case is not made by this record 
as entitles the complainant to a decree. The parties owned 
adjoining premises, a corner was fixed by agreement, which was 
supposed to be correct. The complainant built his house at a 
place, which, if that corner was correct, was upon his own land. 
Afterwards a survey was made by the county surveyor, which 
located the corner a considerable distance east of the point 
selected by the parties, and so much so as to throw the com- 
plainant's house on to land owned by the defendant. On the 
supposition that this survey was correct, the complainant pur- 
chased of the defendant, for one hundred and twenty-five dollars, 

NOVEMBER TERM, 1855. 37 

Biebl V. Glick. 

a Strip of land on the west side of the defendant's tract, suffi- 
cient to secure to him his house. This bill was filed to recover 
back the purchase money paid, and to rescind the sale, alleg- 
ing that the survey by the county surveyor was wrong, and that 
the true corner is at the place originally agreed upon between 
the parties, and that the purchase was made under a misappre- 
hension of the facts, by which he was induced to purchase his 
own land. There is no pretence of frand on the part of the 
defendant. The record contains considerable testimony as to the 
location of the original corner, and probably the weight of the 
evidence is that according to the original government survey, 
the complainant built his house upon his own land, but while 
this may be conceded, it is also undeniably true, that there is 
sufficient doubt about it to leave the matter open to dispute and 
controversy. The fact may be conceded that the complainant 
was induced to make the purchase in order to secure his house. 
By the purchase his solicitude was set at rest. But it is not a 
conceded fact that without the purchase, he owned the land 
on which his house stood. By first making the purchase and 
thus securing himself certainly against the loss of his house, and 
then filing this bill to set it aside and recover back the purchase 
money, he asks this court^to try his title to the disputed premi- 
ses, without the hazard which would have attended a trial at 
law, upon an ejectment brought against him. If upon this 
hearing the question of boundary is decided against him, he 
still is safe upon the purchase which he has made, without being 
subjected to the chances of a negotiation with the defendant, after 
a settlement of the question of title against him. He first 
negotiates with all the advantages which he could derive from 
the doubt as to the true line, and after securing the benefits of 
such a negotiation, he seeks to set it aside if he can show that 
the old line was the true one, but to maintain it if the new sur- 
vey should prove to be correct. There is nothing to show that 
either party is now in possession of any facts which they did 
not know at the time he made the purchase. Nor did he even 
venture to offer to rescind the purchase, without a trial of the 
question as to the true boundary, but now onlj in fact seeks to 
rescind it, upon the judgment of this court, that the old line 
was the true one, and that he in fact owned the land before on 
which his house stood. He may well have thought it imprudent 
to give up the advanvantages of the purchase without the judg- 
ment of a court settling his right, and leave the defendant to 
try his right to the premises on which his house stood in an 
action of ejectment. This si a sharper practice than can meet 
with the sanction of this court. He bought his piece at a very 
reasonable price, and with as full a knowledge of all the facta 


Brigbam et al. v. Hawley. 

as he had at the time he filed his bill or now has, if we lay out 
of view the finding of the Circuit Court in his favor. We are 
very clearly of opinion that he should be held, to his purchase. 

This is not such a case of mistake of facts as will authorize a 
court of chancery to rescind the purchase and refund the pur- 
chase money. 

The decree of the Circuit Court must be reversed and the 
bill dismissed. 

Decree reversed. 

Davis Brigham ei al., Plaintiffs in Error, i\ John Hawley, 

Defendant in Error. 


Mutual demauds arising out of the same subject matter, although one arises ex 

contractu and the other ex delicto, capable of being balanced against each 

other, may be adjusted in one action. (a) 
Where work is done under a special contract fixing the price to be paid, the 

contract will control the price whether it be reasonable or not. The contract 

must govern where it can be made to apply. 

The declaration in this case embraced three special counts on 
the contract, and the general counts for work and labor, and 
quantum meruit. The special counts averred that Hawley was 
to quarry stone for wages, after the rate of eighty cents per 
yard ; that he excavated, gi'ubbed and stripped the earth, pre 
paratory to quarrying, &c., and one of the counts stated the con- 
tract at length. The defendants below pleaded the general 
issue, with a notice that they should prove that Hawley had been 
overpaid ; and that a large quantity of quarrying tools had been 
delivered to Hawlejf, which he was to re-deliver when he dis- 
continued to work, which he had refused to do ; and claiming dam- 
age the refer, which was specified in a bill of particulars. 

The cause was heard before Baugh, Judge, and a jury, at 
September term, 1854, of the Marion Circuit Court; verdict and 
judgment for plaintiff below, for $370.60 and costs. Motions 
for a new trial and in arrest of judgment were overruled. The 
defendants below brought the cause to this com't by writ of error. 

J. N. Hatnie and a. J. Gallagher, for Plaintiffs in Error. 

R. S. Nelson and Houts and Hamilton, for Defendant in 

(a) See Edward's et al. vs. Todd, 1 Scam. 462 ; Babcock vs. Tice, IS l\\. U. 420 ; 
and notes. 

NOVEMBER TERM, 1855. 39 

Brigham et al. v. Hasvley. 

Caton, J. This action was brought for the work and labor 
of opening a stone quarry, and for quarrying stone. It appears 
that a contract was made between the parties, that the plaintiff 
should quarry stone for the defendants, without specifying the 
quantity, for which he should receive a stipulated price per yard, 
the defendants to furnish tools, which, were to be kept in order 
by the plaintiff, who was also to load the stone on to the defend- 
ants' wagons. After the plaintiff had opened the quarry and 
had got out a considerable amolint of stone, the defendants dis- 
missed him and took possesion of the quarry themselves, 
alleging as a reason, that the plaintiff was not getting out the 
stone fast enough for their purposes. Some complaint is also 
made that the plaintiff did not load the stone when required. 

Upon the trial it appeared that the plaintiff, when he quit the 
work, took away the defendants' tools and secreted them, and 
that they were not found for ten or twelve days. " The defend- 
ants then offered to prove damages sustained by the defendants, 
in hunting up tools after they were taken away, and the amount 
of money they were compelled to pay out to hands in their em- 
ploy, and who were left idle on account of said tools having 
been taken away, for which said defendants had an account filed, 
but the court excluded said evidence and defendants excepted." 
In this we think the court erred. This doctrine of recoupment 
was examined and settled in the case of Stow t>. Yarwood, 14 
111. 424. This court there said, " The principle plainly deduce- 
able from the adjudged cases is, that mutual demands arising out 
of the same subject matter, and capable of being balanced 
against each other, may be adjusted in one action." And this 
principle is applicable, although one demand arises ex contractu, 
and the other ex delicto. In that case the action was trover for 
wrongfully taking and converting a steam engine, and the de- 
fendant was allowed to recoup the amount of work which he had 
done for the plaintiff in repairing the engine. So, in principle, 
is this case. The plaintiff's demand arises ex contractu and the 
damages, which the defendants seek to recoup, arise from the 
wrongful act of the plaintiff in taking away and secreting the 
tools. But those tools were a subject matter of the contract out 
of which the plaintiff's demand arose. Under that contract he 
was entitled to the use of the tools while doing the work, and 
by virtue of the contract he had possession of them. When he 
ceased to use them for the purpose stipulated, it was his duty to 
return them to the defendants. This duty he violated, and the 
defendants are entitled to reduce the amount of his demand 
against them, growing out of the contract, by the amount of 
whatever damages they have sustained by reason of that wrong- 
ful act of the plaintiff. Had the two demands not been thus 


Eyan v. Dunlap et al. 

connected together, as growing out of the same transactions, the 
rule would have been different. We think the court erred in 
excluding this evidence. 

We also think the court erred in giving the fourth in- 
struction for the plaintiff. That instruction was as follows : 
"That, even although the plaintiff failed to comply with the 
contract on his part, still defendants are bound to pay plain 
tiff for all the work done by him which was received by 
defendants, or appropriated to their use, at a reasonable price, 
or what it was reasonably worth." Where work is done under 
a special contract fixing the price, that must constitute the 
measure of compensation, whenever the party is entitled to re- 
cover at all, for the work done. Whether the price agreed upon 
be greater or less than the real value of the work, makes no 
difference ; the contract must govern, wherever it can be made 
to apply, (a) WTiat the work was reasonably worth, or whether 
the price agreed upon be reasonable or unreasonable, have noth- 
ing to do with such a case, and are entirely immaterial and irrel" 
evant. This instruction, therefore, which permitted the jury to 
allow the plaintiff what his work was reasonably worth, irrespec- 
tive of the contract price, was improper as to the work, the 
price of which was fixed by the contract, and should not have 
been given to the jury. 

The judgment must be reversed and the cause remanded. 

Judgment reversed. 

Ebenezer Z. Ryan, surviving Assignee of the Bank of 
Illinoi<y, Plaintiff in Error, V. James Dunlap et al., De- 
fendants in Error. 


The cashier of a bank acting in conformity with the practice and rules of the 
in9titution,may release a debt secured by mortgage in its favor. Nor need such 
release be under seal. 

A mortgagee being a banking institution by its agent and servants, may do all 
such acts in respect to the debt as usually may be done in money transactions, 
verbally or in writing, without regard to the mortgage security. 

Atransfer of a debt secured bv mortgage, by assignment or dehvery, would 
generallv carry the mortgage in equity , and payment of the debt will discharge 
the lien." Pavment of a debt secured by mortgage may be made otherwise than 
by the delivery of money, and the entry of satisfaction on the margin of the 
record of the mortgage is not required as prescribing a rule of evideuce. 

Under the act of 25th Februarv. 1843, the otiicers of the Bank of Illinois had all 
necessary powers to settle up and close its affairs, by receiving and releasing 
debts due to it. 

Corporations are presumed to have agents and servants acting for them in the 
usual course of dealing within their powers ; and their acts shoidd bind 
their principals. 

(a) Mc'Lelelland vs. Snyder, 18 m. R. 58 ; FoUiott vs. Hunt, 21 111. R. 654 ; Spring- 
dale Cemetery Association vs. Smith, 24 111. R. 482 ; llobiies vs. Siumnel, Id. 370 ; 

Evans vs. The Chicago and Rock Island Railroad Company, 26 111. B. 189 ; Walker vs. 

Brown, 28 lU. R. 378 ; Stevens vs. Coffeen, et al. 30 lU. R. 148. 

NOVE^IBER TERM, 1855. 41 

Ryan v. Dunlap et al. 

The following statement will exhibit in the principle fact 
involved in this controversy: 

On the 19th day of February, 1840, John C. Stickney being 
seized in fee of lots 1111 andlll2, in Shawneetown, mortgaged 
the same to the Bank of Illinois, to secure debts then due by 
Stickney to the bank, and advances to be thereafter made by 
said bank to Stickney, for the purpose of enabling him to finish 
off a house then in process of construction upon said lots; the 
whole debt and advances not to exceed the sum of $12,000. A 
note was executed and delivered for that amount, and is recited 
in said mortgage. The mortgage was recorded March 10, 1840. 
On the 29th day of December, 1840, Stickney conveyed said lots 
in fee to E. H. Gatewood, and the deed was recorded January 
12th, 1841. On the 16th day of June, 1842, Gatewood mor- 
gaged the same lots to James Dunlap, to indemnify him as surety, 
on a bail bond, which mortgage was recorded July 11th, 1842. 
On August 8th, 1842, the suit in which bail bond was given was 
compromised, and the notes of Gatewood taken in satisfaction 
with Dunlap as surety. In 1847 these notes were paid by Dun 
lap, and he claims indemnity under the mortgages. On July 1st, 
1842, Gatewood mortgaged the same premises to Newoomb & 
Co. , reciting the mortgage made by Stickney to the bank; this 
mortgage was recorded July 16th, 1842. On the 9th day of 
May, 1845, Newcomb & Co. assigned their mortgage to W. & 
C. Fellows, without recourse. May 4th, 1843, the bank, by 
Dunlap as president, gave a power of attorney to A. G. Cald- 
well to release mortgages when satisfied, which power was re- 
corded May 22d, 1843. On the 19th day of August, 1843, 
Gatewood executed and delivered to the bank, James Dunlap 
being then president, his note for $15,280, the amount then due 
on the Stickney mortgage, and executed and delivered a mort- 
gage on the same lots and other property previously mortgaged 
to the bank to secure the payment of the note; the Stickney 
note was surrendeed with an indorsement signed by John Sid- 
dall, cashier, but in Caldwell's hand-writing, stating that the 
note had been paid by Gatewood, and on the same day Siddall 
released the mortgage from Stickney to the bank. There was 
no payment in fact of the Stickney mortgage. On Febuary 
25th, 1843, the act was passed to " put the Bank of Illinois in 
liquidation," to take efl"ect March 3d, 1843. On the 25th Feb- 
ruary, 1843, a suplemental bill was passed and accepted by the 
bank, by virtue of which the prior act was suspended for four 
years, and by which the bank was io'' '-he finally wound up accord- 
ing to the rules and regulations hereby established;^^ and the 
bank was prohibited from " loaning" any money, " but shall 
confine all its operations to winding up its affairs, collecting and 


Kyan v, Dunlap et al. 

securins; its debts." A supplemental act was passed February 
28th, 1845, vesting the eflfects of the bank in assignees, &c., 
with power " to collect all debts due to said bank," Under this 
act Dunlap, as president, assigned the effects of the bank to 
Caldwell and Ryan. When the substitution of the Gatewood 
for the Stickney mortgage took place, Dunlap was president and 
Gatewood a director of the bank. John Crenshaw, who was a 
director of the bank swears that in 1843 the board voted the 
substitution and directed the surrender and release. It does not 
appear that there was any record of this vote. It is not shown 
that there was any by-law of the corporation which authorized 
Siddall, as cashier, to enter satisfaction of mortgages, though he 
had done so before the power was given to Caldwell ; but there 
is no proof of any such releases since the record of Caldwell's 
power. The records of the board show no power in Siddall to 
release, nor does the charter vest any such power in the cashier. 
Gatewood died on February 27th, 1848. Dunlap and W. & C. 
Fellows & Co. file separate bills of foreclosure, and make the 
assignees of the bank parties defendant. 

The indorsement on Stickney's note, made and signed by Sid- 
dall, the cashier of the bank, was as follows: " This note is paid 
and satisfied by E. H. Gatewood, this 19th August, 1843." 

The decree in this case was ordered by Marshall, Judge, a:^ 
August term, 1853, of the Gallatin Circuit Court, and directed 
the sale of the property in controversy, and the division of the 
proceeds ; but did not recognize that Ryan as assignee had pri- 
ority or preference, by virtue of the mortgage executed by Stick- 
ney in 1840, the notes which that mortgage was given to secure 
having been declared canceled by Siddall, the cashier of the 
Bank of Illinois. 

W. Thomas, for Plaintiff in Error. 

S. S. Marshall and R. S. Nelson, for Defendants in Error. 

ScATES, C. J. The only question presented is simply one of 
priority of mortgage lien. But its solution involves two other 
questions : first, whether the mortgage under which plaintiff 
claims that priority was paid and discharged. Second, the pow- 
ers of the board of directors and cashier to discharge it, in the 
manner shown by the record. 

We are of opinion with the defendants upon all these ques- 
tions, and will state some of the principles and reasons which we 
think support that conclusion. 

The mortgage debt is the principle thing and the mortgage a 
mere incident of it. Coffing et al. v. Taylor, 16 111. R. 472 ; 

NOVEMBER TERM, 1855. 43 

Ryan v. Dunlap et al. 

Warner et al. -w. Helm et al., 1 Gil. R. 231 ; 1 Hilliard on 
Mortg., Cap. 11, pp. 163, 164 ; 1 Hilliard on Real Prop., Cap. 
33, pp. 418, 419 ; Martin v. Mowlin, 2 Burr R. 969. (a) 

The mortgage, and his agents and servants, may deal with 
and do such acts in respect to such debt as may be usually done 
in relation to money transactions, verbally or by writing, with- 
out regard to the mortgage security. A transfer of the debt by 
assignment, or delivery of the note, would generally carry the 
mortgage in equity and payment would discharge the mortgage 
lien. The necessity of acting under seal in relation to such 
a debt, depends upon the nature of the act as affecting the mort- 
gage security or the title to the land, by assignment or release 
of the mortgage security. And this would be equally the ease 
with individuals as with corporations. But so far as power and 
mcde of action is concerned in transferring or collecting the 
debt or the note given for it, I know of no difference between 
one secured by mortgage and one not so secured. Its transfer 
or payment is a mere question of fact and intention as if no 
mortgage existed, and the rules of law and evidence and the 
power of the parties the same. Its existence might assist in ex 
plaining and ascertaining their intention as evidenced by par- 
ticular acts, but cannot vary or control their power or mode of 
dealing with or settling the debt. A formal release of this 
mortgage should be under seal, but such a release would not 
discharge the debt. On the contrary a verbal or written dis- 
charge of the debt by its payment in money, property or other 
securities, would discharge the mortgage, and without a release 
or satisfaction entered upon the mortgage itself or the margin 
of the record, as provided by Rev. Stat. p. 110, Sec. 37. The 
provision is made for the protection of mortgagees and others 
by the recording and preservation of evidence of satisfaction of 
it, on the same public record ; and not as prescribing a rule of 

What then may be alleged and sustained as payment ? It is 
not a technical term importing the delivery of money. It may 
be made in property or other securities. It is a question of 
fact, of the meaning and intention, of the parties. The proofs 
here leave no question of the intention. It was Stickney, not 
Gatewood, who owed and was bound to the bank for this debt. 
Gatewood, it is true, had purchased subject to the bank lien, 
but he owed the bank nothing on it ; he was bound to Stickney, 
not the bank. Stickney desired to be released by payment 
of his debt to the bank. The bank proposed to release Stickney 
if Gatewood would give his note for the debt and interest due 
from Stickney, with a mortgage on the same and other property. 

(a) Lucas et al. vs. Harris, 20 1\\. R. 165 ; Vansant vs. Almon, 23 ni. R. 31 ; Her- 
ring Impl. etc ; et al. vs. Woodhull, 29 Ul. R. 92 ; Fiirdee vs. Lindley, 31 111. R. 174 ; 
White vs. W Iker, Id. 422 ; FarweUImpl. etc. vs. Meyer, 39 m. R. 510. 


Ryan v. Dunlap et al. 

This was agreed to and done, and Stickney's notes and mort- 
gage receipted and delivered up to him, and satisfaction en- 
tered on the margin of its record in the recorder's office by the 
cashier of the bank. 

The entries In Lhe books of the bank and two of its directors 
prove the intention to comport with these acts, as a total dis- 
charge of Stickney's debt without any reservation of the mort- 
gage securitiy to meet Gatewood's new liability secured by his 
mortgage of the same and other property. 

It would require an express agreement to rebnt such clear 
proof of payment. The doctrine of the mere renewal of mort- 
gage notes by the mortgagor or others, continuing under the 
mortgage security, is no answer to such facts as these. 

I need not review the various cases of payment by giving 
higher or other securities by the debtor, or the bills or notes of 
third persons. (a) A satisfactory summary will be found in 2 
Greenleaf Ev. , Sees. 516 to 523, and well sustained by the refer- 
ences ; 7 Mass. R. 286 ; 2 Metcalf R. 168 ; Allard v. Lane ; 18 
Maine R. 9 ; 21 Pick. R. 230 ; Cow. R. 301 ; Hilliard 
on Mortg. 306, 307, and notes, p. 310, paragh. 12 ; 12 Johnson 
R. 409; Barnes -o. Carmack et. al., 1 Barb. S. C. R. 392. 
There is no proof of bad faith or false representations. If there 
was any mistake in canceling a prior and taking a junior lien 
to other incumbrancers, it was the fault and carelessness of the 
bank m not examining the records and title. They shall not 
be heard to allege this to the prejudice of Stickney and Gate- 

The remaining question is as to the powers of the bank or 
agents and officers of the bank to make this agreement and can- 
cellation of one debt and mortgage and take another in pay- 
ment. It is needleess to discuss the general doctrine which 
cofines corporations strictly within the delegated powers, and 
to the objects and means within the charter. 

The general powers of the bank for further transactions of 
general banking were suspended by the Act of 25th Feb., 1813, 
which declared that the bank should go into liquidation within 
thirty days from that date. Act 1843, p. 32, Sec. 6. The 7th 
Section declares that the bank should not exercise the usual 
banking powers, but should " confine all its operations to wind- 
ing up its affairs, collecting and securing its debts, paying the 
debts of the bank, selling its real and personal estate, issuing 
the certificates for balances, provided for in the sixth Section of 
this Act, and to renewing the notes of its debtors from time to 
time, upon the payment of one-fifth part each time, and to suing 
and being sued, in relation to all its dealings," for which pur- 
pose alone its powers and charter were continued for a limited 

(a) Lucas vs. Harris 29 ni. R. 166. 


Ryan v. Dunlap et al. 

time. There were other specific directions and details for the 
same object. 

Theis Act seems to be now construed as converting the direc- 
tors and officers of the bank into trustees of creditors and 
stockholders. I do not so regard it. They were no more of that 
character after this Act, in the exercise of the powers limited 
by it, than before, in the full exercise of their charter powers. 
They were still in the management of their own affairs for the 
purposes of settling their business. What they had power left 
to do was done in the same character, though for a single object, 
as the like acts before the restriction. The character of those 
who managed the settlement of the affairs of the bank was 
changed fully by the Act of 1845, when assignees were appoint- 
ed in the nature of receivers of the effects of the bank. 

It is true it appears by the evidence, that a loan of money 
was a part of this particular transaction for change of debtors 
and securities, and which they had no power to make. But 
they had power to make the arrangment to secure the debt by 
taking the note and mortgage of one for the debt, note and 
mortgage of another. And in doing so, to exercise their own 
best judgment of their interest. Circumstances and facts, 
known and apparent to them, dictated the policy and prudence 
of this arrangement. They acted very negligently in not exam- 
ining the title, it is true ; but there is no proof of fraud, design 
or overreaching in any one concerned, nor of any bad faith in 
Dunlap, who, though president, was not personally concerned as 
such, or present, or knowing of this transaction when made. 
The principles and doctrines contended for world render bank- 
ing and other corporate acts of like general business trans- 
actions, wholly impracticable. Nor do we recognise the 
current of authorities at this day as sanctioning the ancient 
strictness which required corporations to act in most important 
transactions by seal and in writing. In the varied and multi- 
plied transactions of banking, manufacturing, railroad, municipal, 
and other corporations, it will be found impossible to provide 
their agents with written or even express verbal powers and 
instructions for all their acts on beiialf of their principals, or 
for those dealing with them, to wait to inspect such evidence 
of authority. 

To a very great extent, like individuals who act through 
agents and servants, these corporations are held to presumed or 
implied agencies, authority and instruction, to those who are 
held out or permitted to act for them in their usual course of 
dealing within their charter powers, when not controlled spe- 
cially by its provisions, the by-laws, or the nature and character 
of the contract or the subject matter of it. Angell and Ames 


Kyan «. Dunlap et al. 

on Corp., 268 to 304 ; Paley on Agency, pp. 310 to 312, Sec. 
2 ; Story on Agency, Sees. 52 to 56, and notes. 

Although the English rule has not been relaxed to the same 
degree, in this respect, as the American, yet the courts have 
conformed to the wants and necessities of daily business trans- 
actions in a very great degree. Beverley v. The Lincoln Gas 
Light and Coke Co 6 Adol. and Ellis, R. 829 ; Church v. 
Imperial Gas Light and Coke Co. , id. 846 ; Mayor of Ludlow 
V. Charlton, 6 Mees. and Welsh. R. 815. 

The cashier is necessarily the general agent of the bank in 
dealings with customers in money, notes and bills, — the receipt, 
deposit, transfer and payment of them. It is indispensable to 
the interests of the corporations, and necessary to the protection 
and security of customers that he should exercise these powers, 
and that his acts should bind his employees. Angell and Ames 
on Corp. 293, (2) to 297 ; Story on Agency, Sees. 92 to 97. 
114, 115. 

The cashier acted in this instance within the general scope of 
his authority in endorsing receipts for payment upon the note, 
mortgage and record, as evidence of the agreement and dis- 
charge between the directors and Stickney, and in delivering 
them up as paid. Proof is made that he had been in the habit 
of entering satisfaction of mortgages in the mortgage record 
for four years previous. The power of attorney to Caldwell to 
do the same is no revocation of this authority in the cashier. 

We do not think the objection sustainable, that the transac- 
tion is not proven by minutes of the proceedings of the board. 
The agreement may be shown by parol when no minute was 
made or kept, — and that although no formal meeting of the 
directory was had for the purpose. The transaction was known 
to them — they acquiesced in and acted upon it. 

We are of opinion the mortgage and notes of Stickney to 
the bank were paid and discharged ; and the assi gnee is not 
entitled to revive the mortgage as a prior lien. 

Decree is affirmed. 

Decree affirmed. 

NOVEMBER TERM, 185^. 47 

McClure vi Ensrelhardt. 

Henry McClurb, Plaintiif in Error, v. Jacob Engel- 
HARDT, Defendant in Error. 


The levy of an execution upon land in a different county from that in which the 
judgment was rendered , will operate as a lien ; and a sale under it, would per- 
fect the title, by relation back to the levy, (a) 

If a certificate of a levy upon execution from a foreign county is not filed in the 
recorder's ofiice, the levy will not take efl:ect as a lien ; and creditors of pur- 
chasers without notice, intervening between the levy and sale, may hold a- 
gainst the levy. But if a certificate of sale is filed, it will operate as a constructr- 
ive notice from that date ; and will pass to the pruchaser all the interest of the 
judgment debtor. (J) 

In ejectment a defendant who holds under the same gTantor with the plaintifi", 
cannot deny title in him, or set up an adverse title in himself or another. 

A certificate of sale of lands is assignable, and title may pass under an assign- 
ment of it so defective as would not enable the holder to compel the officer to 
execute a deed, yet if he does execute one, it will be good. 

This was an action of ejectment instituted by McClure against 
Engelhardt for the recovery of the north-west quarter of the 
south-west quarter, and south-east quarter of north-east quarter 
of Sec ion 5, in T. 2 N., R. 7 W., in St Clair countVv 
Plea g neral issue. It was tried by the court at April term 
1849. The court found for the defendant and rendered judg- 
ment against the plaintiff for costs. The plaintiff proved on 
the trial that the lands in question were entered at the proper 
land office on the 16th day of January, 1839, by William Cobb, 
and on the 8th of January, 1840, Cobb and wife conveyed the 
land by deed in fee simple to Jefferson Shores. The plaintiff 
then proved by transcript from the Madison Circuit Court, 
that on the 7th day of October, A. D. 1841, Hiram Chandler 
recovered a judgment against Thomas J. Shores, impleaded, &c., 
for $253.10 debt and damages and costs. On the 30th Decem- 
ber, 1841, an execution on the said judgment was issued to the 
sheriff of St. Clair county, and returned by him — that on the 
8th of January, 1842, he had levied the same on the lands in 
question, and afterwards made no sale for want of bidders. On 
the 30th day of November, 1842, a venditioni exponas was issued 
to the sheriff of St Clair, upon which he returned that he had 
sold the lands in question, on 4th of February, 1843, to Samuel 
G. Bailey, attorney for plaintiff, in due form of law for $246, 
and had filed a certificate of the sale in the recorder's office on 
7th February, 1843. To admitting this record of judicial pro- 
ceedings, defendant objected and excepted. Plaintiff then intro- 
duced the certificate of sale, filed in the recorder's office on the 
7th day of February, 1843. The plaintiff then introduced a 

(a) Reichert et al. vs. Mc'Lure, et al. 23 ni. R. 516. 
(6) Brown vs. Niles, leUl. R. 388. 


McClure v. Engelhardt. 

deed from the sheriff of St. Clair to him as assignee of said 
certificate under said judicial sale, dated September, 24th, 1847. 
The plaintiff then proved by one Hopkins, the officer who made 
the levy aforesaid, that he knew Jefferson Shores, who resided 
on the lot claimed by Engelhardt — that when witness got the 
execution against Thomas J. Shores, he went to the house of Jef- 
ferson Shores, by whom witness was told that his (Shores) 
proper name was Thomas Jefferson Shores. Hopkins further 
testified that Shores lived on the tract claimed by Engelhardt at 
the time of the levy of the execution aforesaid, and was present 
at Belleville at the time of the sale of said land under said 
execution, and that Engelhardt lived there at the time of the 
commencement of this ejectment suit. The defendant then 
proved by Hay, the recorder of St. Clair, that no certificate of 
the levy of the execution in question had ever been filed in his 
office, he having made diligent search ; that he could not tell 
whether the letter " h" on the endorsement of the certificate of 
sale in said case was made by him (Hay) or not. The defend- 
ant then offered in evidence the original certificate of sale, 
given by the sheriff of St. Clair, to Bailey, attorney, for Hiram 
Chandler, plaintiff in execution, and proved by the sheriff that 
the transfer or assignment on the back of the same was the 
only assignment of said certificate ever produced to him, and 
was the one upon which he executed the sheriff's deed to plaintiff. 
The plaintiff then introduced a deed from De Wolf & Chickering 
to Shores for said north-west quarter of south-west quarter of 
sec. 5, dated Oct. 20,1843, and recorded in St. Clair the 23d of 
the same month ; to which defendant excepted. The plaintiff 
then introduced a deed from Shores and wife to Engelhardt, 
for the last described tract, dated October 20th, 1843, and 
recorded on the 23d of the same month. Plaintiff then proved 
by a witness, that at the time of the sale of the above tract by 
Shores to Engelhardt, that Shores moved out of the house and 
Engelhardt the same or the following day moved in and took 
possession of the premises. Plaintiff below moved for a new 
trial, because the finding was contrary to the law — contrary to 
evidence — and the court had admitted improper evidence, which 
motion was overruled. 

The case is brought here by writ of error, and plaintiff assigns 
for error, that improper evidence was admitted on behalf of 
defendant below and in refusing to grant a new trial. 

W. H. Underwood and P. Fouke, for Plaintiff in Error. 
G. KoERNER and G. Trumbull, for Defendant in Error. 

NOVEMBER TERM, 1855. 49 

McClure v. Englehardt. 

ScATES, C. J. At the time of the levy of this execution 
Shores appears to have been in possession of the premises, and 
owned an equity of redemption — both of which were subject to 
levy and sale under it. Acts 1841, ITl, Sec. 7 ; Rev. Stat.' 1843, 
p. 300, Sec. 1. Switzer et al. v. Skiles et al., 3 Gil. R. 532, 533; 
Turney et al. v. Saunders et al.,4 Scam. R. 532; Jackson ex 
dem. Stone v. Scott, 18 John. R . 94 ; Jackson -y. Parker, 9 Cow. 
R. 80,84, 85. (a) 

Judgments were not liens upon lands at the common law, 
because lands were not liable to sale, but levies were liens, upon 
such property as was liable to be taken and sold. By statute, 
the delivery of execution to the officer was made to operate as 
a lien. We have modified the English rule, by subjecting the 
land to sale, creating a judgment lien on that in the same county 
of the judgment, and adopting the English statute in relation to 
liens on personalty by delivery of the execution. 

Lands in foreign counties to the judgment were subject to 
levy and sale, although the jugdment itself did not operate as a 
lien. Without assuming that the delivery of the execution to 
the officer of a foreign county, would, by analogy, operate as a. 
lien on the land, like the personalty, because it was liable to be 
taken. We cannot question but that the levy would so operate 
from its date, and a sale in pursuance of such levy would per- 
fect the title by relation back to the levy. Fair purchasers were 
liable to be overreached by these semi-secret leins, without any 
official toode of notice or of obtaining it. 

To remedy this evil, the legislature provided that the certifi- 
cate of levy and sale, should each be filed in the recorder's office 
of the county where the lands lay, and so also of levies of 
attachments. Rev. Stat. 1845, p. 302, Sec. 12, p. 305, Sees. 25,, 
26, 27 ;(see act 1845, p. 170, Sec. 24,) and in each case to, 
take effect as a lien from such filing, as to creditors and bona fide 
purchasers, without notice. 

The certificate of levy in this case was not filed, and there- 
fore took no effect as a lien by constructive notice, and creditors 
and subsequent purchasers, without actual notice, might have 
held the land against this levy, (b) But tio such right in terveneo 
between the levy and sale. The certificate of sale was filed, 
and was constructive notice from that day. This was before 
any conveyance back to the judgment debtor by his mortgagees, 
and is sufficient to pass to the purchaser all the interest of the- 
judgment debtor, and with notice of the levy and judgment as 
well as of the sale. We cannot construe the statute requiring, 
the filing of the certificate of levy, as defeating the titles 
acquired by the sale and certificate duly filed on account of a,^ 
failure to make the levy a lien by recording it. 

(o) Thomas ?;«. 'Bowraan, 29 m. R. 426. „_ „„.„ ,„„, o 
(6) Whitevs. Kibby, 42ni. R. 511. ILIi. REP. XVII. 6 


McClure v. Engleliardt. 

The only effect of the failure would be to subject the levy 
be set aside, and a subsequent sale defeated, by an innocent 
intervening creditor or purchaser. But if none such intervene, 
the levy is not void, but is good to support the sale, and when 
that is duly made and certificate filed, it will take effect as an 
independent notice, and connection with the judgement through 
the unrecorded levy, as if the levy had never been required to 
be recorded. Such is the title set up and shown here, which 
appears to us sufficient to entitle the plaintiff to a verdict and 
judgment in this case, for anything shown in proof in this 

It is contended that defendant claims under the same grantor, 
Shores, and is therefore estopped to deny title in him, or set 
up an adverse title in himself, or third person. So the rule is 
laid down, 2 Greenl. Ev. p. 306, Sec. 307 ; Bancrofts, ^^^lite, 
1 Caine Rep. 190, and note a ; Jackson ex dem. Masten ?). Bush, 
10 John. R. 223; Jackson e.r detn. Bowne -y. Hinman, id 292: 
Ferguson -w. Miles, 3 Gil. R. 365 ; McConnell v. Jackson, 2 
Scam, R. 258. [«] But the fact seems to have been overlooked by 
the plaintiff, that he, and not the defendant, claimed title 
for defendant, and deduced it from Shores. Defendant of- 
fered to show title in the mortgagees, and there rested the ques- 
tion, contenting himself upon objections to plaintiff's title, and 
without setting up any in himself. We should, therefore, notice 
one or two more objections to plaintiff's title. 

It is said the judgment was against one man, and the execu- 
tion was levied upon the propertv of another. The answer is 
that the evidence of identity is sufiicient and satisfactory. 

Again, that the sale was to Bailey, the attorney of the judg- 
ment creditor, and the certificate of purchase was assigned by 
the latter. The proofs and circumstances satisfy us abundantly 
that the purchase was for and by the creditor, through his attor- 
ney of record. Upon these proofs the coart would not feel 
authorized to render a judgment against Bailey as a purchaser, 
and compel him to pay the creditor for this land. This certifi- 
cate was assignable by the statute. 

The title might well pass, under such a defective assignment 
as would not enable the holder to compel the officer to execute a 
deed ; yet he may do so, and it will be good. It is not a ques- 
tion in which the judgment debtor has any interest ; having neg- 
lected to redeem, his title has passed ; and, as to him it is not 
material as to whom it is conveyed. Wiley et al. -u. Bean et al., 
1 Gil. R. 305. See Garrett d. Wiggins, 1 Scam. R. 335 ; 
Voorhees -y. The Bank U. States, 10 Pet. R. 478. 

(rt) Holbrook vs. Brenuer, ctal. 31 \\\. U. 501 ; PoUok vs. Jlaison, 41 Id. 518 ; Davis 
vs. Mc'Vickers, 11 111. Tl. 427; Dickcrman us. Burgos, 20 111. \\. 200; Johnson vs. Adlc- 
mau, 35 111. K. 280 ; Blaiv vs. Chaniblin, 39 111. H. 627 ; Morritt vs. Ilaslnook, 1 W^cud. 
K. 47 ; Proctor vs. Farnan, 5 Paige C. E. 614 ; 7 Hill 11. 91, 4 Deuio R. 480. 

NOVEMBER TERM, 1855. 51 

McClure v. Englehardt. 

It was contended that this doctrine would enable sheriffs to 
convey the land to whom they pleased, in fraud of those having 
right. When such an attempt is made, and shown to the court, 
a proper remedy and corrective will be found and applied. This 
does not present such an one. A very simple punctuation after 
the word attorney, will make it read plainly as the parties un- 
derstood and acted upon it ; that is, that the land was struck ofi' 
to S. G. Bailey, attorney for plaintiiF in execution. Accord- 
ingly he passed over the certificate to his client, as pui'chaser, 
and he assigned it to the plaintiff here, to whom the sherift" 

If the defendant has any title, he should have presented it. 
So far as any appears in the record, we are of opinion with the 

Judgment reversed and cause remanded for new trial. 

Judgment reversed. 

Skinner, J., dissenting. Judgment was obtained against 
Shores in Madison Circuit Court ; on the 30th day of Decem- 
ber, 1841, execution issued to the sheriff off St. Clair county, 
and was, on the 8th day of January, 1842, levied on the land in 
controversy as the property of Shores. No certificate of this 
levy was filed in the recorder's office of St Clair county, where 
the land levied upon is situated. On the 30th day of Novem- 
ber, 1842, a venditioni exponas execution issued under which the 
land was sold, and the sheriff, on the 24th day of September, 
1847, executed a deed to the plaintiff, as assignee of the pur- 
chaser. On the 7th day February, 1843, a duplicate of the 
certificate of purchase was filed by the sheriff in the recorder's 
ojffice of St. Clair county, but the same was not recorded. 

The defendant claimed title by deed from Shores, dated the 
20th of October, 1843, and recorded the 23rd of the same month. 
The defendant, being a bona fide purchaser without actual notice, 
must take the title, unless he is affected by some lien of the judg.- 
ment execution, levy, or sale, or by constructive notice from the 
filing in the recorder's ofiice, of the duplicate of the certificate 
of purchase; and in my opinion no lien was created by either of 
them upon the land, nor would the defendant be constructively 
charged with notice of either execution, levy or sale. 

The judgment of Madison Circuit Court was no lien upon 
land in St. Clair county, and no certificate of the levy was filed 
in the recorder's office of the county where the land is situated. 

The act of 26th February, 1841, entitled "An act to enable 
purchasers of real estate to ascertain whether the same is free 
from encumbrances, and to prevent secret liens of attachments 
and executions," and now in force, requires the' sheriff to whom 
execution, " fi-om a foreign county is directed, upon levy of the 


McClure v. Englehardt. 

same on land, to file a certificate of such levy in the recorder's 
office of the county where the land lies ; and declares that, 
'' until the filing of such certificate, such levy shall not take 
effect as to creditors or bona fide purchasers without notice." 

This act requires the recorder to file the certificate of levy, 
and to record the same in a book to be kept for that purpose. 
The execution, levy, sale, and filing in the recorder's office, by 
the sheriff, of a duplicate of the certificate of purchase, created 
no lien on the land, nor were they, or any of them, constructive 
notice to the defendant, who before the execution of the sheriff's 
deed, purchased of the execution debtor. As to the defendant, 
the levy did not take tffeci, and the subsequent proceedings under 
the execution, prior to his purchase, and without ajctual notice, 
did not affect his title under the execution debtor. 

The act concerning judgments and executions, approved Jan- 
uary 17, 1825, required sheriffs, on sale of lands under execution, 
'' within ten days from such sale to file in the office of the clerk of 
the county a duplicate of such certificate " of purchase, and pro- 
vided that " such certificate, or a certified copy thereof, should 
be taken and deemed evidence of the facts therein contained.'* 
The act of February 19th, 1811, amendatory of the act of 1825, 
and now in force in this respect, provides that " the duplicate 
copy of the certificate of purchase required by the act to which 
this is an amendment, to be filed in the office- of the clerk of the 
county, shall in all cases hereafter be filed in the office of the 
recorder of the county in which the lands so sold under execu- 
tion shall be situated." 

This duplicate certificate of purchase the law requires to be 
so filed in all cases of sale of lands under execution. It is not 
filed for record, nor is it contemplated that it should be recorded. 
It constitutes no constructive notice. Its objects are to add to 
the security of the purchaser as evidence of his purchase, in case 
of loss of the original ; to afford a certain means of ascertain- 
ing the purchaser ; and to enable the debtor to redeem by paying 
the redemption money to such purchaser. See Real Estate Stat- 
utes 332, Sees. 10 and 11 ; ibid. 340, Sec, 4 ; ibid. 448,449. 

I think the intention of the act of February 26th, 1841, was 
as its title indicates," to prevent secret liens of attachments and 
executions, " and that, where the execution comes from a foreign 
county and is levid on land, neither the execution, levy or sale, 
nor the filing of the duplicijte of the certificate of purchase in 
the recorder's office by the sheriff, under the statue, will affect 
bona fide purchasers without notice, until the filing of the cer- 
tificate of levy required by that act. 

I thereupon dissent from the opinion of tho majority of the 
court upon this question. 


Songere, Gallatin County. 

Samuel Songer, Plaintiff iii Error, v. The County Court 
of Gallatin County. 


Under tho act of 1852, in relation to theswamp lands, the right of a pre-empter 
is restricted to the several legal sub-divisions oi forty acres each, portions of 
which are covered by his improvments, not exceeding a quarter section . 

Songer, on the 10th of April, 1855, made application to the 
county court of Gallatin, to establish a pre emption, at appraised 
value, of the west half of the north-east quarter, and the east 
half of the north-east quarter of Sec. 11 of T. 85 N., 8 E., 
being swamp lands, in pursuance of the act of the General 
Assembly to dispose of the swamp lands, " approved 22nd June 
1S52, " and the act amendatory thereof, approved 4th March, 
1854. The County Court allowed him to purchase the south-east 
quarter of the north-west quarter of section eleven, being the 
forty acres on Avhich his improvements were located ; and 
refused his application for the other lands. 

From this order of the County Court Songer appealed, and took 
his application to the Circuit Court. At November terra, 1855, 
of the Circuit Court, Baugii, Judge, presiding, the judgment of 
the County Court was afbrmed. Songer then sued out his writ 
of error, and brings his application to this court for review. 

N. L. Freeman, for Plaintiff in Error. 

J. Olney, for Defendant in Error. 

Caton, J. The 28th section of the act of the 22nd of June, 
1852, directing the disposition of the swamp lands, provides 
that persons owning improvements on swamps lands, " shall have 
the right to purchase, at the appraised value thereof, a quantity 
of land ii) eluding his said improvement, to be bounded by the 
legal sub-divisions, not exceeding one quarter section, to consist 
of the quarter quarter, half quarter or quarter section. " We 
are now called upon to construe that portion of the act above 
quoted, and the question is, whether a party having an improve- 
ment on swamp lands is entitled to take the whole quarter 
section on which his improvement is situated, although his 
improvement does not touch all of the forty acre tracts in the 
quarter, or whether his pre-emption right is confined to the 
several quarter quarter sections, portions of which are covered 
by his improvement. It seems to us very plain that it was :)he 


Cross », PinckneyvilleMillCo. 

intention of the legislature to confine the right of purchase to 
the forty acre lot or lots upon which the improvement, stands — 
the right is given to a quantity of land to be bounded by the 
legal subdivisions not exceeding a quarter section, consisting 
of the forty, eighty, or one hundred and sixty acre tract, which 
shall embrace the improvement. A forty acre tract is here con- 
sidered a legal subdivision, and that is what is meant by " a 
quantity of land, " and he may take as many of these quarter 
quarter sections as his improvements encroach upon, not ex- 
ceeding a quarter section. He cannot be compelled to take 
more than the forties upon which his improvement stands, nor 
has he the option to take more. 

The decision of the Circuit Court must be affirmed. 

Jud^menl affirmed. 

Alvin Cross, Appellant, t). The Pinckneyville Mill Com- 
pany, Appellee. 
Zachariah Cross, Appellant, -vs. The same, Appellee. 


The mauufacture of lumber, flour and meal is within tlip meaning of the act of 
1849, authorizing "the formation of corporations lor uiauufacturiug, agricul- 
tural, mining or mechanical purposes." 

A certiticate of the Secretary of State to the effect that a duplicate of the certificate 
of organization of a company under the above act, had not been tiled in his 
office, is not e\idence . Nor does it seem that the omission to tile such certiticate 
would defeat the organization. 

Payment of subscriptions to stock niade before the organization of a company 
under the above act of 1849, will be enforced, if the organization is afterwards 

This was an action of assumpsit, originally commenced by 
appellee, before a justice of the peace, to recover from appel- 
lant three installments of fifteen per cent, each on two shares of 
stock of $50 each, alleged to have- been subscribed by appel- 
lant to said company. This cause was taken to Perry Circuit 
Court by appeal, and tried by the court, Breese, Judge, pre- 
siding, at October term, 1855. From the judgment of the court 
below, which was in favor of the company, an appeal is pros- 
ecuted to this court. 

The subscription on which this suit is brought was signed by 
appellant about one month before any effort was made to incor- 
porate the company. 

NOVEMBER TERM, 1855. 55 

Cross V. Piuckneyville Mill Co. 

The appellant insisted that there was no proof below of 
organization of said corporation, it not being shown, in addition 
to the certificate filed with the County Court, that a duplicate 
certificate of organization of said company was filed in the 
office of the Secretary of State, as required by the statute. 
See Laws of 1849, page 87. 

HosMER and Watts, for Appellant. 

Underwood and Hamilton, for Appellee. 

ScATES, C. J. The principal questions presented upon the 
argument, are, 1st — Whether the defendants have been fully 
organized under the act of 1849, pp. 87, 88, Sees. 1, 2, 3, 5 ; 
2nd — Whether there is sumcient proof of that fact. Sec. 9 ; (a.) 
and 3rd — \Miether the plaintifi" is liable to the defendants 
upon calls made upon his subscription to the stock of the com- 
pany ; Sees. 6, 7, 10, 18. 

We answer and resolve all these questions in the affirmative. 

Upon the first we remark that the manufacture of lumber, 
flour and meal is within the meaning of the act ; the number of 
incorporators is sufiicient ; three may, and here five have made, 
signed, acknowledged, and filed in the office of the clerk of the 
County Court a certificate of incorporation, containing the i. 

essential facts and information intended to be communicated !' 

and made public. \ 

Secondly y This fact is established ^Jr^ ma facie, by the kind I 

and quantum of evidence provided by the ninth section, which i 

makes a copy of the certificate filed with the clerk, duly certi- | 

fied by him ' " presumptive legal evidence of the facts therin \ 

stated. " But the ground of objection under these proposition j 

took a wider range, under a certificate from the Secretary of < 

State, that a duplicate of the certificate of organization had \ 

not, on 29th September, 1854, or prior thereto, been filed in 
the ofiice of Secretary of State, as required by the firis section. 

I am not aware of any statute or rule of law that makes such 
a certificate evidence of any thing. The certificate of the Sec- 
retary will be sufiicient to authenticate the laws of the United 
States, of other States, (Rev. Stat. p. 233, Sec. 6,) and "all \ 

laws acts, resolutions, (of our own State,) or other records, ^ 

appertaining to his said oflSce, " id. p. 491, Sec. 5. But I deem 
it a misapprehension of the true object of such a certificate, 
when offered to prove what is not of record, or that this certifi- 
cate is not of record. Any person who has examined offices or 
records who can, may swear and so prove that the matter is not 
there orof record. The Secretary may indirectly establish the 

(tt) See stone vs. Great Western Oil Co. 41 111. R pp. 92 and 3 and cases there cited. 


Cross V. Pinckneyville Mill Co. 

negative fact here offered in evidence by certifying to the actual 
time of such filing, and so, by fiximg the time, exclude any other 

But as it was received without objection, we take the facts as 
Ptated, that is, that the duplicate certificate of organization had 
not been filed in the Secretary's office on or prior to that day, 
still the facts are unimportant to defeat the organization or 
rights growing out of it. We feel no disposition to explain 
away, excuse compliance, or dispense with, any requirements of 
statutes, especially those which may affect the rights of third 
persons or parties interested. There is, however, a well settled 
distinction between mandatory and directory pro visions. And 
these, like those of private contractte, are settled and enforced 
according to the intention and ti^ue meaning of the legislature, 
deduced from the act, and sometimes aided by other acts in 
pari m.ateria^ and extraneous circumstances. (a) The filing of this 
duplicate seems by the first section a secondary object, and we 
may only conjecture its uses, as multiplying the places of pub- 
licity, proofs, and the chances of preservation of the evidence 
from loss, accident, or destruction. This view is confirmed by 
the language of the second section in declaring that " when the 
certificate shall have been filed as aforesaid " the persons sign- 
ing, and their successors, " shall be a body politic and corporate 
mfact and in name," and is further strengthened by the ninth 
section, declaring a copy of it, certified by the county clerk, 
"presumptive legal evidence of the facts therein stated." We 
should endeavor by construction to aid in carrying out the 
true intention and effectuating the object of the law Here it 
seems to be to encourage and aid in the establishment of such 
manufactures, &c., as will meet arid supply the wants and 
demands of the people. We do not think these ends would be 
promoted by strict technical constructions, converting every 
direction and detail of powers into a mandatory pre-requisite of 
corporate existence. A similar precautionary direction, and of 
great utility to the public, is found in the general railroad act 
of 1849, special session, pp. 23, 32, Sees. 20, 43, in relation to 
filing maps and profiles of the road with the Secretary of State, 
and of parts relating to each count}'", with the county clerk and 
recorder. We give this as the true and apparent intent of the 
legislature upon the face of the law, and would by no means 
be understood as questioning the general doctrine as laid down 
and sustained by the current of authorities. Whatever is 
expressly or impliedly required to be done as essential to bring 
the corporation into existence must be done. Aug. and Am. on 
Corp. 67, Sec. 7 ; Fire Department of New York v. Klip, 10 
Wend. R. 266. 

(a) A. on Corp. See 635. 

NOVEMBER TERM, 1855. 57 

Cross V. Pinckneyville Mill Co. 

Third, The company thus organized, made and gave due 
notice of calls for installments upon plaintiff, among others, as a 
subscriber to the stock ; and this is resisted upon the ground 
that his subscription was before the organization, and is there- 
fore void or voidable for want of a promisee, consideration, or 
mutuality, he never having met, or acted with others in this sub- 
sequent organization, or recognized them as a corporation. 
This presents the broad ground of his obligation or liability on 
such preliminary subscription. We think it sustainable upon 
sensible distinctions, and by authority of adjudged cases. A 
distinction has been made between a mere subscription of stock, 
which could only be enforced by forfeiture or sale of the share, 
and those subscriptions which contained a promise to pay, upon 
which an action may lie. Salem Mill Dam Corporation t. 
Ropes, 6 Pick. R. 31. Held, in Bridgewater Academy -y. Gil- 
bert, 2 Pick. R. 580, that the action would not lie, where there 
Avas no such promise. Franklin Glass Co. v. White, 14 Mass. 
R. 286 ; Chester Glass Co. v. Dewey, 16 Mass. R. 94. 

But another distinction was recognized as substituting an im- 
plied liability for money had and received or laid out and expended, 
when subscriber had paid part, and in faith of it, further expin- 
ditures had been incurred. Farmington Academy -y. Allen, 14 
Mass. R. 172; 2 Pick. 580. 

Many decisions have supported the action upon an express 
promise to pay calls upon shares subscribed. Worcester Turn- 
pike Corporation t>. Willard, 5 Mass. R. 80 ; Andover and 
Medford Turnpike Corporation -». Gould, 6 Mass. R. 40 ; 
where, however, it appeared unauthorized and unaccepted by the 
corporation, it was not enforced. Essex Turnpike Corporation 
-0. Collins, 8 Mass R. 292. In Phillips^ Limeric Academy t). 
Davis, 11 Mass. R. 113, a subscription and agreement to pay 
towards the erection of an Academy, before an act of incorpo- 
ration of the enterprise, the court held could not be enforced by 
the corporation for want of a promise and mutuality. The 
County Commissioners of Randolph County -y. Jones, Breese 
103 ; and Wallington Manufacturing Company •». Fox, 12 Vt. 
R- 304 ; stand upon the same grounds and Mayo -y. Chenoweth, 
Breese R. 155, for want of a promisee. In The Scots Charitable 
Society Ti. Shaw, adm'r., 8 Mass. R. 532, a recovery was sus- 
tained while the court doubted the right of recovery. («) 

While this court has required all the pre-requisites of the cnarter 
to be complied with, it has upheld the power of the directory to 
require payment from the stockholders in incorporations for 
business purposes. Barret ■». Alton and Sangamon Railroad 
Company, 13 111. R. 504. It has futher held, that the sub- 
scription is not invalidated by a failure to exact the advance 

(a) A. on Corp. See 255. 


Cross V. Pinckneyville Mill Co. 

payment, and the minutes and books of the company are evidence 
of its acts and proceedings, and such acts are Prima facie evi- 
dence of a compliance Trith the pre-requisites of their charter, 
and the regularity and legality of their proceedings. R^^der v. 
Alton and Sangamon Railroad Company , 13 111. R. 516. 

The true and correct principle is laid down in Kidwelly 
Canal Company v. Roby, 2 Price R . 93, (1 Eng. Exch. R. 189;) 
where a subscriber, to an agreement among the parties to it, to 
promote a joint undertaking or common purpose, was held liable 
for his subscription as a shareholder to the corporation after- 
wards formed, under an act of Parliament subsequently obtained 
to carry out that undertaking and common object, [a.] 

The same principle has been applied, and a subscription, 
before the association was organized under a general banking 
law of New York, was enforced at the suit of the President of 
the Company. Staunton, President of the Albany Exchange 
Bank, V. Wilson, 2 Hill R. 153. 

Again, in The Hamilton ani Deansville ^jlankroad Company 
v. Rice, 7 Barb. S. C. R. 157, it was applied under the gene- 
ral plankroad law of that State — and the court held not only 
the contemplated company, a promisee and the promise good to 
them as a third person, but that there was mutuality, and a suf 
ficient consideration in the stock, dividends and general inter- 
ests of the company to which the promisor became entitled. 

The Covington, Coal Creek and Jacksonville Plankroad Com- 
pany v. Moore, enforces the liability on like facts, 3 Indiana R. 
510 ; which is also applied to insurances in Judah v. The Amer- 
ican Live Stock Insurance Company, 4 Indiana 833. Ten- 
nessee adopts and enforces the same liability. Gleaves i). The 
Brick Church Turnpike Company, 1 Sneed R. 491. Tracy v. 
Yates, 18 Barb. S. C. R. 152, does not militate with this doc- 
trine. It was an attempt to fix a liability for past debts of the 
company, personally upon a new and subsequent stockholder, 
who had bona Jide paid in her subscription to an insolvent and 
sinkmg concern ; which the court evidently seem to regard as a 
swindling adventure. The sacrifice was sought to be doubled 
by fixing the day of subscription, instead of the day of pay- 
ment as the time when she became a stockholder, but the court 
held that she became such only on payment. 

Parties should not be permitted to toy and trifle with the 
rights and interests of others, by agreeing and entering into 
such enterprizes with others, where expense and trouble must 
be incurred in the preparation for and organization of compa- 
nies, and larger or less sums may be expended, before they are 
told by i-hose, upon the confidence of whose means and assis- 

(a) Tonica and Pctersberg Railroad Company vs. Mc'Xecly, Adni. etc. 21 111. R. 72; 
Griswold vs. Trusties of Peoria University, 26 111. 11. 43 ; Johnston v*. Ewing Female 
University, 35 m. li. 527. 

NOVEMBER TERM, 1855. 59 

Christy v. PviUiam. 

tance they venture, that they will withdraw, and set up the 
endless technicalities of the law as a justification and defence. 
Should these be encouraged and sustained, the public will derive 
but little good from general acts of incorporation, (a) 

These acts are intended to invite and aid small capitalists by 
association to furnish and accommodate the growing wants of 
the community. The policy is judicious and much may be 
accomplished from limited means ; when it is understood that 
in this, as in other agreements, parties will be held to the per- 
formance of their contracts in which the rights and interests of 
others are involved. 

Judgment affi,r7ned. 

Andkew Christy, Plaintiff in Error, -». James Pulliam, De- 
fendant in Error. 


A husband made certain bequests to his wife, among others, certain lands, "to 
dispose of at her death to any person sliemaythinkbestto live with her, and 
take care of her ;" she conveyed these lands, and it was held that the grantee 
in an action of ejectment might otfer his deed in support of his title ; and that 
evidence of a tenancy of defendant under his grantor, with a view of estopping 
him from denying title in plaintiff, is proper, {d) 

The power conferred on the wife by the will, may be executed by deed or mil, or 
other simple writing, if suflicient to convej^the subject matter of it ; the inten- 
tion of the devisor, by the power conferred on the wife, is too plain to admit of 

This was an action of ejectment, to recover the possession of a 
certain tract of land situate in St. Clair county. Declaration 
contains but one count ; plaintiff claims an estate in fee in said 

The cause was tried by the court and jury. Plaintiff showed a 
connected title of record from the United States to one Joseph 
Olge, and produced the last will of said Joseph Ogle, duly proved 
which will contained the following provisions : "Also I iiive and 
bequeath to the above named Lucy Ogle, to have and to hold 
during her natm'al life, the land that I now own and reside on 
to occupy and use the said laud in the same way as it would be 
lawful for her to do if the title were full and complete in her," 
and in subsequent part of will, the provision, viz.: " The land not 
indudedin adove heq^iteath /{referring to lands in controversy^ 
I give and bequeath to my beloved wife, Lucy Ogle, to dispose of 
at her death to *any person she may think best to live with and 
take care of her,^' and then offered to introduce a deed from 

(a) Peoria and Oquaka Railroari Company vs. Elting, post. 432. 
(6) Overruled. Pulliam vs Christy, 19 m. R. 333. 


Christy -y. Pulliam. 

Lucy Ogle, the widow of Joseph Ogle, deceased, conveying the 
lands sued for to the plaintiff, having proved by one Duncan, 
that the land sued for was not included in the special bequest 
referred to in said will, which said deed was by the court ex- 
cluded from the jury. 

The plaintiff then called one Absalom Badgly, and offered 
to prove by him that the defendant came into the possession of 
the premises under a lease from the o-rantor of the plaintiff, and 
asked the following question : " Do you know of James Pulliam, 
the defendant, having paid rent to Lucv Ogle, the grantor 
of the plaintiff?" which question the court would not permit 
the witness to answer. 

The plaintiff then offered to prove by said witness that the 
defendant rented the land in controversy of Lucy Ogle, who 
was the grantor of the plaintiff, and that the relation of land- 
lord and tenant existed beween them ; also to prove that said 
Lucy Ogle has conveyed her interest in said land to said plain- 
tiff, all of which t>.e court refused to let plaintiff prove, and 
thereupon the jury found a verdict pro forma for the defendant, 
of not guilty, at August term, 1855, of the St. Clair Circuit 
Court, Breesb, Judge, presiding. 

The plaintiff moved a new trial, which was overruled. 

G. Trumbull, for Plaintiff in Errorr. 

W. H. UNDERWOod, for Defendant in Error. 

ScATES, C. J. The testator provided for the payments of his 
debt and funeral expenses out of his personalty and gave the 
remainder to his wife forever. He also devised to his wife the 
land upon which he lived, viz. : " To have and to hold during 
her natural life the land, that I now own and reside on, to oc- 
cupy and use the said land in the same way as it would be law- 
ful for her to do if the title were full and complete in her. " 
He further devised, at the death of his wife,|two other tracts, a 
forty and a thirty-five acre tract, to certain nephews, by metes 
and bounds, (which by codicil he revoked as to them and gave 
to another nephew,) and then proceeded; "and the land not 
included in the above bequeath, I give and bequeath to my 
dearly beloved wife, Lucy Ogle, to dispose of at her death to 
any person she may think best to live with her and take care of 
her." The will was proved Sept. 21, 1846. On the 12th of 
June, 1854, Lucy Ogle executed a deed in fee of these lands to 
plaintiff. The court excluded this deed in evidence, and re- 
fused evidence of a tenancy of defendant under the grantor. 
Upon these rulings arise the questions before us. 

NOVEMBER TERM, 1855. 61 

Christy v Pulliam. 

The first clause recited devises a life estate in her of the home- 
stead tract ; the second does not devise the lands, but creates a 
general power of appointment in fee, without special or particu- 
lar conditions or directions as to the time, mode or manner of 
doing so, or restriction in appointing an estate less than a fee, 
or in executing it at different times, for different parts of the 
land, or quantum of interest. " To dispose of at her death" 
might import a limitation as to time and the mode bj will, were 
not the sense and intention of the testator so clearly manifested 
by the remainder of the sentence. But it is very clear that the 
object of the power was for the benefit of the devisee of it, to 
enable her, in her discretion, to make provision for her susten- 
ance and comfort until her death, for which purpose the power 
enables her to dispose of the land ''to any person she may think 
best to live with her, and take care of her." The literal read- 
ing would lead us to an absurd conclusion and make nonsense. 
The testator never contemplated such an idea as restricting the 
power to the time of her death, for it would then imply that 
the person receiving the land would have "to live with her, and 
take care of her" after he had received it, in order to return the 
consideration for it, in the "care" provided for. To avoid this 
absurdity, we must understand, under such a restriction of the 
power, that the purchaser under it, must bestow, in advance, 
during her life-time the "care " intended, which means, not only 
attentions, but moneys, maintenance, and all neccessaries of life, 
and trust to her execution of the power in his behalf at her 
death ; and should she fail, neglect or refuse its execution, it 
might be very questionable whether equity w^ould interpose for 
his relief, by supplying a want of it in his behalf. 4 Kent Com. 
339, 340, 341 ; 1 Coke Little. 113 a, note (C. 2) ; Clinefelter et 
al. V. Ayres, 16 111. 329. We must therefore, seeing so plainly 
an intention by the power, to make provision for her mainten- 
ance according to her own discretion, give it full effect by for- 
bearing such restrictions as might wholly defeat a purpose so 
grateful to the heart of a dying husband. 

The same rules of construction govern contracts and wills, 
and are framed and adopted to ascertain the intention which is 
to govern. 1 Greenleaf Ev., Sec. 287 and notes, and Sec. 289 
and notes. 

When the mode of executing the power is not defined, it may 
be executed by deed or will, or other simple writing, if sufficient 
to convey the subject matter of it. 4 Kent Com. 330; Fair- 
man V. Beal 14 111. R. 244 ; 2 Hilliard on real Prop. 559, 
Sec. 12 ; 1 Sugd. on Pow. 258, Sec. 3, clauses 9 and 13, ( 1 Law. 
Lib. p. 228.) And the power need not be referred to in the 
instrument executing it. 4 Kent Com. 334. 


Christy v, Pulliam. 

The manner o£ execution here by deed, the time, and the 
quantity of estate, are all within the terms and intention of this 
will — 4 Kent's Com. 319 — and we are, therefore, left to the 
inquiry of the grounds of its exclusion in evidence. 

We remark, in the first place, that the exclusion of the evi- 
dence of a tenancy of defendant under the grantor, with the 
view of estopping hnn from denying title in plaintiff as her 
grantee, was proper ; for while we recognize the law as cor- 
rectly laid down on that subject, we think it has no application 
here, as will be apparent fiom the principles which govern a 
case like this. 

It is not the case of an ordinary conveyance, nor like it in its 
effects ; but the doctrine of powers has its peculiarities. 

Plaintiff, as appointee under the power, derives his title, not 
under the person exercising the power, but from the will ; the 
deed operates as the direction of a use, and he takes in the 
same manner as if the use had been limited to him by the will. 
4 Kent Com. 327, 328. And this deed of appointment relates 
back to and takes effect from the will : and he takes under the 
testator, and not Mrs. Ogle, who merely executed it by his direc- 
tion. 4 Kent Com, 337, 338 ; 1 Coke on Litt. 112 « and notes 
(M. 1) (N. 1) Albany's case ; Marlboroug v. Godolphin,2 Ves. 
Sen. R. 61 ; Cook ?)." Duckenfield, 2 Atk. R. 565—8 ; Middle- 
ton and wife v. Crofts, 2 Atk. R. Appendix 661 ; Bradish «. 
Gibbs, 3 John. Ch. R. 550 ; Doolittle v. Lewis et al., 7 John. 
Ch. R. 45. Andthis was carried so far in Roach et al., v. Wad- 
ham, 6 East. R. 289, that Watts, who had the power of appoint- 
ment, with a limitation over to him in fee, on default of appoint- 
ment, rendering rent to plaintiff, one of the parties to the creation 
of the power as part owners of the estate, discharged the land 
from his covenant to pay this rent to plaintiffs, which covenant 
run with the land ; and the appointee took the land free of the 
rent, by the appointment of Watts, but not by conveyance fi'om 
him, and was, consequently, not subject to his covenant to pay 
the rent. But this relation back to the creation of the power 
is not to be understood, nor will it overreach intervening rights. 
4 Kent's Com. 338 ; Marlborough v. Godolphin, , 2 Ves. Sen. 
R. 78 ; Southby v. Stonehouse, id. 610. 

This is not a uaked power, but is coupled with a benefioial 
nterest in the devisee of it ; and her exercise of it will if prac- 
ticable, be upheld. Clinefelter et al.?). Ayres, 16 111. 329 ; 
Fairman ^. Beale, 14 111. R. 244. 

The plaintiff has set forth, according to the statute, the 
estate he claims,which is a fee, and can recover no less estate. 
The deed conveys a fee — and there is no proof in the record 
that the lands described in the deed and declaration are the 

NOVEMBER TERM, 1855. 63 

Richey v. McBean. 

hoDf estead, in which the grantor took a life estate as devisee 
under the will. 

The question, therefore, does not arise upun this record as to 
the effect of the execution of the power upon the life estate in 
the homestead. The land described may be the same, in whole 
or in part ; but as the will did not describe it by numbers, and 
no witness has deposed to its identity, we cannot identity it. 

The plaintiff must recover, according to his allegations, a fee 
or nothing. Ballance v. Rankin, 12 111. E. 420 ; Rawlings v. 
Bailey et al., 15 111. R. 178. But the evidence offered by him 
will prima facie support his allegations, and should, therefore, 
have been admitted. 

JudgDient reversed and cause remanded for new trial, (a) 

^ Judgment re'Gersed. 

William A. Richey, Plaintiff in Error, T). William McBean, 
Defendant in Error. 


A. sued B. before a justice of tliepeace,to recover back money which B. alleged 
had been overpaid to A. on a contract for ferriage. Both were sworn at the 
trial ; A. affirmed tlie existence of a contract.which B. denied. A. then charged 
B. witli perjury and liad him arrested, and, on examination, lie was discharged, 
for which B. brought an action for malicious prosecution against A. Held, 
that on the trial of the action for malicious prosecution, A should be permitted 
to show in his defence the testimony given by him upon the hearing of the 
prosecution, touching the existence and character of the alleged contract. 

A reasonable ground of suspicion, supported by circimistances sufficiently strong 
in themselves to warrant a cautions man in the belief that the person accused 
is guily of the offence with which he is charged, is probable cause to be 
shown in defence of an action for malicious prosecution. 

This action was tried in the Massac Circuit Court, before 
Parrish, Judge, and a jury, at June teim, 1851 ; verdict and 
judgment for the plaintiff below for five hundi*ed dollars and 


R. S. Nelson, for Plaintiff in Error. 

J. A. Logan and C. G. Simmons, for Defendant in Error. • 

Skinner, J. This was an action on the case for malicious 

Richey, the defendant below, sued McBean before a justice 
of the peace, to recover back money paid McBean by Richey 

(a) Wills conferring powers upon wife constructed. In the matter of the Estate of 
Seth Whitman, 22 lU. R. 510 ; Jeunings- vs. Jennings, 27 ILL R. 518. 


Richey v. McBean. 

for ferriage. McBean becanie a witness on the trial for Richej, 
to prove an alleged contract between them in relation to such 
ferriage, and testified that no contract in relation to the ferriage 
was made between him and Richey. Richey made complaint 
before a justice of the peace, charging McBean with perjury in 
so testifying ; a hearing was had before the justice, and McBean 
was discharged, 

McBean then brought this suit for such prosecution. Upon 
the trial in the Circuit Court, McBean proved the prosecution 
and his discharge, and proved facts and circumstances tending 
to establish malice and want of probable cause. Richey, with- 
out objection, proved that he, on hearing of the prosecution and 
perjury, testified : that a contract was made between INIcBean and 
him as to the charge to be made for the ferriage ; that McBean 
testified, on the trial of the civil suit between them, that no con- 
tract was ever made relating thereto ; and that the testimony of 
McBean was untrue. 

The proceedings in the civil suit were proved, by Avhich it 
appeared that McBean was sworn and testified on that trial, 
and denied the making of the alleged contract with Richey, or 
any contract relating to the ferriage. 

Rich;y also proved that McBean, before the commencement 
o, the civil suit of Richey against him, stated that he had agreed 
with Richey to ferry at five cents per barrel, but that now he 
would not do it for less than ten cents per barrel. 

Considerable other evidence was offered by McBean and by 
Richey, upon the question oiprobahle cause, but wholly unsatis- 
factory in its character. 

The error assigned is : the refusal of the Circuit Court to set 
aside the verdict against Richey, because it was against the law 
and the evidence ; and the only question is : was the defendant 
entitled to a new trial upon the evidence ? 

In this action, the declaration must charge that the defendant 
was actuated by malice in setting on foot the prosecution, and 
that the same was done without probable cause ; to maintain 
the action these allegations must be proved, and it is for the 
plaintiff" to prove them. 

In this case, if it be admitted that the plaintiff established 
prima facie want of probable cause, yet, that the prima facie 
case was overthrown by the evidence on the part of the defend- 
ant, as given at the former trial, the testimony of the defendant 
given upon the hearing of the charge of perjury was before the 
jury, and that testimony, if true, showed a fit case for prose- 

This testimony is corroborated by proof of an admission of 
the plaintiff inconsistent with the truth of his testimony in the 

NOVEMBER TERM, 1855. 65 

Richey v. McBean. 

civil suit, and it may be said (in the absence of anything to the 
contrary) that the fact of the defendant calling upon the plain- 
tiff to testify in relation to the alleged contract, when his case 
depended upon the proof of such contract, is a circumstance 
consistent only with the supposition that he understood that a 
contract did exist, and that he relied upon it for redress. 

From all that appears in the case, the contract, if one existed, 
was known only to the parties, and it would seem to follow, upon 
grounds of public policy and of necessity, that the testimony of 
the defendant, given upon the hearing of the prosecution touching 
the existence and character of the alleged contract, should be 
admitted in his defence of an action brought against him for 
such prosecution. 

If this is not the law, no citizen could be safe in prosecuting 
another for crime, where the offence is peculiarly within his 
knowledge and not attended with circumstances susceptible of 
proof by others. Johnson et ux. v. Browning, 6 Mod. R. 216 ; 
Guerrant v. Tinder, 1 Va. R. 56 ; Burlingame v. Burlingame, 
8 Cowenl41 ; Scott v. Wilson, Cooke's R. 315 ; 1 Greenl. Ev., 
Sec. 362 ; 2 ibid., Sec 457 ; Scott v. Simpson, 1 Sand. R. 601. 

The policy of the law is to favor prosecutions for crimes, and 
it will afford such protection to the citizen prosecuting as is 
essential to public justice. 

We think the evidence on the part of the defendant established 
probable cause for the prosecution. Had the plaintiff been on 
trial of an indictment for perjury, and had a jury found him 
guilty upon the positive evidence of Richey, and the admission 
of the contract proved, we cannot say the verdict could properly 
be set aside for insufficiency of the evidence ; and if this be so, 
it follows that the evidence in this case established probable- 

Probable cause is 'defined to be : " a reasonable ground of' 
suspicion, supported by circumstances sufficiently strong in them- 
selves to warrant a cautious man in the belief that the person 
accused is guilty of the offence with which he is charged."' 
Munns v. Dupont el al., 3 Wash. C. Ct. R. 31 ; Foshay v. Fer- 
guson, 2 Denio 617 ; Ash v. Marlow, 20 Ohio 119 ; Jack v. 
Stimpson, 13 111. 701. (a) 

Upon this definition, it cannot be doubted that the evidence 
established probable cause. 

Judgment reversed and cause remanded. 

Judgment reversed. 

(o) Hurd Vf . Shaw, 20 Ul. R. 356 ; Israel vs. Brooks, 23 Id 575 ; Ross and Co vs. Inni* 
35 Id. 572. To maintain an action for malicious prosecution trials and acquittal by Jury 
is not necessary ; 42 Id. 145 ; which, overrules Hurd vs. Shaw., so far as a contrary rule 
is intimated therein . 

ILL. REP. — xvn. 4 


Thatcher v. Thatchers 

Nancy R. Thatcher, Plaintiff in Error, 'c. Wesley 
Thatcher, Defendant in Error. 


On application for a divorce, if the jury find the allegations of the bill true, 
except that the plaintiff had been a dutiful wife, it entitles her prima facie to 
a decree. 

In such a case, if the court thinks the finding wrong, it should set aside the verdict 
and order anew trial, or, perhaps, reform the verdict and enter a decree con- 
trary to it. 

The verdict of a jury in such a case, where the evidence is not preserved in the 
record, shows tliat the proof sustained the allegations in the bill, and the court 
must so consider it. 

In a ease for divorce, where a bill is dismissed, it is erroneous to|enter a judgment 
against the wife for costs. 

This cause was heard before Baugh, Judge, and a jury, at 
.September term, 1854. 

The opinion of the court furnishes all the facts necessary to 
a full understanding of the case. 

R. S. Nelson and H. Johnson, for Plaintiff in Error. 

R. F. Wingate, for Defendant in Error. 

Caton, J. This was a bill for a divorce, filed under our 
statute by the wife against the husband, charging acts of ex- 
treme and repeated cruelty. There was a trial by jury and a 
verdict returned finding all the allegations of the bill sustained, 
except the allegation that she was a dutiful wife, whereupon 
the court dismissed the bill at the complainant's cost. This 
verdict was substantially a verdict for the complainant and 
prima facie entitled her to a decree. If the court thought from 
the evidence that the finding should have been the other way, 
it should have set the verdict aside and ordered another trial, or 
perhaps — under the decision in the case of Garrett v. Stevenson, 
3 Gilman, which was under the mechanics' lien law, with prin- 
ciples similar, as to the right of trial by jury, Avith our statute 
of divorces — the court might, in view of the evidence, reform 
the verdict or enter up a decree contrary to the verdict, yet 
such decree must be sustained by the evidence contained in the 
■record, as much at least as any other decree in chancery. 
Prima facie, at least the verdict shows that the proofs sustained 
the allegations of the bill, and as this is all that the record does 
show as to what the proof was or what facts were proved on 

NOVEI^IBER TERM, 1855. 67 

Smith et al. v. Kahili. 

trial, we must treat it as evidence of the facts. Were the proofs 
•which were given at the hearing embodied in the record, from 
which we could see that the verdict was clearly wrong, and the 
allegations of the bill not sustained, we might sanction the 
decree which was entered or order another trial. It has been 
several times decided by the court, even under the late statute 
allowing oral proofs to be heard at the hearing in chancery suits, 
that the evidence upon which a decree is entered must be 
embodied in the record. Unlike actions at law, the evidence in 
a chancery suit constitutes a part of the record, except there be 
a verdict of a jury, or the report of a master finding the facts, in 
which case such verdict or report presents in the record the 
facts established instead of the evidence heard to establish the 
facts. In this case the record does not show sufficient to sus- 
tain the decree. But even if there were sufficient in the record 
to sustain the dismissal of the bill, that portion of the decree 
requiring the complainant to pay costs was erroneous, (a) The 
court by its decree continued her under the disabilities of afefne 
covert, but subjected her to the liabilities of ^feme sole. This 
portion of the decree against her was inconsistent with the posi- 
tion in which she was required to continue. 

The decree must be reversed and the suit remanded. 

Decree reversed. 

Rowley Smith et al., Appellants, v. Edward Kahill, 


In an action for work and labor, the certificate of a foreman of the defendant 
showing the number of day's labor performed, accompanied by evidence tend- 
ing to prove that the person signing the certificate was foreman, is proper for 
the consideration of the jury. 

Where objection is not made to the introduction of parol evidence in the Circuit 
Court to prove a contract, the ettect of that evidence cannot be avoided. 

Where the record does not show an exception taken to the decision of tlie Cir- 
cuit Court in overruUng a motion for a new trial, the decision cannot be as- 
signed for error. 

This cause was tried before Underwood, Judge, and a jury, 
at October term, 1854, of the Washington Circuit Court. Ver- 
dict and judgment for Appellee in the court below. 

Nelson and Johnson, for Appellants. 

Bond and Gray, for Appellee. 

(a) Keavis vs. Reavis, 1 Scam. R. 242. 


Smith et al. v. Kahili. 

Skinner, J. Kahili sued Rowley, Smith. & Co., before a jus- 
tice of the peace of Washington county, to recover for work 
and labor. The plaintiff recovered judgment for $23.02. The 
cause was appealed to the Circuit Court, where judgment was 
rendered for the plaintiff for the same amount, upon verdict of 
a jury. The defendants appealed to this court. 

On the trial in the Circuit Court it was proved that the 
plaintiff, with other laborers, had worked on section ninety- 
seven of the Illinois Central Railroad for Stiles & Co., who 
were sub-contractors under the defendants : that one month's 
pa^? was due them and unpaid, and that they refused to work 
longer on that account ; that defendants then told them to go to 
work for them and open a new pit so that the defendants could 
measure their work and distinguish it from work done for Stiles 
& Co. ; that the plaintiff 's labor was worth $1.25 per day. 

The plaintiff read in evidence a certificate dated August 15, 
1853, to the plaintiff, signed by the defendants, "per M. P. 
Waters, foreman," and certifying that the plaintiff had worked 
for them on said section ninety-seven, eighteen and three- 
fourths days ; proved the hand- writing of Waters, and offered 
evidence tending to prove that Waters was the foreman of the 
defendants, and authorized to give the certificate. The defend- 
ants objected to this evidence ; the objection was (verruled and 
defendants excepted, 

The defendants offered in evidence a similar certificate of the 
same date, to one Ferriel, signed by Waters as foreman of Stiles 
■k Co. To this the plaintiff objected, the court sustained the 
objection, and the defendants excepted. 

We can see no error in admitting the certificate to plaintiff. 
It stated the time plaintiff had worked, there was evidence 
tending to prove authority in Waters to execute the same for 
the defendants, and it was proved to have been signed by 

The certificate to Ferriel, a third person, and shown in no 
manner to have been connected with the plaintiff, nor with the 
transaction between the plaintiff and defendants, was properly 

It was also proved that the defendants paid plaintiff the 
amount due him fi'om Stiles & Co., about 15th July, 1853. 
Some of the witnesses testified that when the hands refused to 
work on account of Stiles & Co. failing to pay them, the defend- 
ants told them to go to work and they would see them paid, or 
would pay them, but which they could not positively say ; that 
die hands refused to go to work without an assurance in writ- 
ing, and that the defendants gave an assurance in writing. 

The defendants set up the statute of frauds as a defence. It 

NOVE^IBER TERM, 1855. 69 

Bond V. Bragg et al. 

was for the jury to determine from the evidence what the con- 
tract was, and there was evidence before them of a direct 
undertaking bj defendants to pay, in consideration of work per- 
formed by plaintiff for them. 

If such was the contract, it was not within the statute.(<z) 

No objection was made to parol evidence of the contract, and 
the defendants cannot now avoid its effect. Sawyer t). The 
City of Alton, 3 Scam. 127. And we think the evidence does 
not show that there was a written contract between the plaintiff 
and defendants concerning the subject matter of this suit. 

There was a difficulty among laborers on the work because 
they were not paid. The defendants " gave an assurance in 
■^vriting," but to whom it was given, or whether to secure the 
payment of what was due them from Stiles & Co. , or for work 
yet to be performed, does not appear. 

The defendants moved for a new trial, but the record fails to 
show that they excepted to the decision of the court overruling 
their motion. This, therefore, they cannot assign for error. 
Selby -0. Hutchinson, 4 Gil. 319 ; Pottle t). Worter, 13 111. 454. 

Judgment affirmed. 

Benjamin Bond, Appellant, n. Addison G. Bragg et al., 



The law of tlie place where a promissory note is made, and ol that where it is 

indorsed, will govern the contract and fix the liability of the several parties 
The laws of the forum must govern the pleadings and evidence. 
To fix the liability of an iudorser, it was necessary to demand payment and give 

notice of its refusal. 
A protest is not required on inland bills and promissory notes, unless by local law 

or usage ; and such protest is not, of itself, evidence of demand of payment 

non-payment, and notice. 

The appellant was sued as indorser of a promissory note. 
The declaration alleged that one Judson made the note, payable 
to appellant at the banking house of J. J. Anderson ; that it was 
made and indorsed in the State of Missouri ; that after the time 
for payment expired, or the third day of grace, it was presented 
at Anderson's for payment ; that payment was refused ; that the 
note was protesed for non-payment ; and that appellant was 
notified. That Judson, the maker of the note, had absconded 
and was insolvent, whereby, under the laws of Missouri, appel- 
lant became liable, &c. To this declaration the general issue 
was interposed. At October term, 1855, of the Clinton Circuit 

(a) Kite vs. WeUs, post 91; Edciv et al. vs. Roberts, post 508 ; Brown vs. Strait et 
al. 19 ni. R. 89 ; Bribtow et al. vs. Lane et al. 21 m. R. 198. 


Bond V. Bragg et al. 

Court, the cause was submitted to Breese, Judge, for a trial with- 
out the intervention of a jury — verdict and judgment for the 
appellees. The note, protest and notice, by notary public of 
Missouri, were offered in evidence, as also the affidavit of the 
notary that he had, on the day of the date of the protest, noti- 
fied the maker and indorser, in writing, of the protest, &c. It 
is also proved that the maker of the note was sometimes called 
"Ned Buntline," and that he had not, at the date of the pro- 
test, any effects in St. Louis or anywhere else, which, with some 
sections of the statutes of Missouri in reference to promissory 
notes, was all the evidence offered. 

The appellant moved for a new trial, which was denied him. 

W. H. UiiDERWooD, for Appellant. 

D. White, for Appellees. 

ScATES, C. J. The only proof offered on the general issue in 
this case, was a notarial protest of a demand and refusal of pay- 
ment on the last day of grace, and an affidavit of the notary 
before a justice of the peace in St. Louis that he enclosed and 
mailed said protest, duly certified by him, officially, directed to 
the maker and indorsers at their several places in St. Louis, 
Carlyle and Memphis. 

We deem it unnecessary to notice the question of diligence 
against the maker, or rather excuse for not sueing him, because 
of his insolvency and absconding. The law of the place of 
making and that of indorsing will govern the contract, and fix 
the liability of the several parties. Holbrook et al. n. Vibard 
et al. , 2 Scam. 467. This note was made payable, and indorsed, 
in Missouri, and, by her laws, a demand of payment and notice 
of refusal are necessary ; and the law of the forum must govern 
the pleadings and evidence. 

To fix the liability of an indorser, it was necessary to demand 
payment, and give notice of its refusal. Kaskaskia Bridge Co. 
V. Shannon, 1 Gill. R. 24 ; 2 Greenleaf 's Ev., Sees. 179, 181, 
186 ; Story on Prom. Notes, Sees. 241, 297 ; Chit, on Bill, side, 
p. 330 ; Story on Bills, Sees. 323, 346 ; 2 Smith's Lead'g Cases. 
[19 Law Lib. to p. 44, 47.] 

In Morgan n. Van Ingen, 2 John. R. 204, it was held, in an 
action against the notary for failing to give notice, that it was 
no part of his official duty to do so. Be that as it may, so far 
as liability for neglect is concerned, yet notice must be given to 
the endorser, &c., verbally or in writing, and personally, by 
agents, or by post, and in due time. Story on Bills, Sec. 300. 

But as a protest is not required on inland bills and promissory 

NOYEMBER TERM, 1855. 71 

Stewart v. Howe. 

notes — unless by local usage or statute — none need be made 
nor proved, nor notice of protest given. 2 Greenleaf 's Ev. ; Sec. 
185 ; Story on Promissory Notes, Sec. 297 ; Nicbolls i\ Webb, 8 
Wheat. R. 326, 331. 

A notarial protest is not, therefore, in cases of inland bills 
and promissory notes, evidence of demand, non-payment, and 
notice by notary, when given by him. Story on Prom. Notes, 
Sec. 297 ; 2 Greenleaf 's Ev. , Sec. 183 and note 1 ; Nicholls?;. 
Webb, 8 Wheat. R. 326-331 ; Kaskaskia Bridge Co. «. Shan- 
non et al. ; 1 Gil. R. 24 ; Robinson v. Johnson, 1 Mo. R. 308 
(434). [a] _ 

The notarial protest may not have been improperly admitted 
in proof of the averment of protest made in the declaration ; 
but it should not have been received, and was incompetent to 
prove the demand of payment, or notice of non-payment. 

There being no other evidence of these facts, we are of opinion 
the evidence does not sustain the finding of the court. 

Judgment reversed and cause remanded for new trial. 

Judgment reversed. 

Aiios Stewart, Appellant, -y. Sophia Howe, by her next 
friend, John Howe, Appellee. 


An infant under ten years of age may maintain an action, by lier next friend, 
for slanderous words charging lier with theft. 

This was an action for slander, commenced by Sophia Howe, 
by her next friend, complaining of Amos Stewart. The words, 
as proved, were: "She stole my money;" " she stole ninety 
dollars ;"" she is a smart little thief." It was also in proof 
that Sophia was but nine years and nine months old. 

The Circuit Court refused to instruct that, if the jury believed 
from the evidence that at the time of the speaking and publish- 
ing of the words laid in the declaration, the plaintiff was under 
the age of ten years, they must find the defendant not guiity. 
But the coui't did instruct the jury, that it made no difference 
whether the plaintiff was, at the time of said speaking and pub- 
lishing, more or less than ten years old, for, in either case, if 
the jury find the issue for the plaintiff, the verdict ought to be 
for the plaintiff, and the jury can only regard the age of the 
plamtiff upon the question of damages. 

(a) Mc'Allisteri/S. Smith, etal. post. 3S6. 


Stewart v. Howe. 

The cause was tried before Parrish, Judge, and a juiy, at 
tbe October term, 1855, of the Massac Circuit Court ; verdict 
and judgment for twenty-five dollars. Motions for a new trial 
and in arrest of judgment were made by the defendant in the 
court below, which were overruled. 

T. G. C. Davis and R. S. Nelson, for Appellant- 
J, Jack, Appellee. 

ScATEs, C. J. The slanderer insists, in effect, upon the infancy 
of bis intended victim, in justification of his malice. Feejee 
cannibalism could a«k no greater license or security for the grat- 
ification and satiety of its unnatural and morbid appetite. I 
must confess that while the law recognizes the speaking and pub- 
lication of actionable words as a wrong and injury, for which it 
offers a remedy, I shall feel, if judges may be allowed that par- 
donable weakness, that such a defence has not a solitary grace to 
recommend it to favor. I would sooner see the action abolished, 
than to read out infancy from the pale of its protection. If 
there can be a redeeming trait in the character of the cormorant, 
it must be in satiating his gluttony upon the strong and powerful, 
at the hazard of physical retribution. But judges have no right 
to feel, or at least to make it a predicate of their judgment. It 
is the head, and not the heart ; and fi'om it must proceed justice, 
legal justice, though the heavens fall by the fiat. 

Chief Justice Sewall said of the defence :" It may be justly 
stigmatized as base and dishonorable ; it may be considered as 
unjust, when offered under circumstances like those now in evi- 
dence ;" Phillips' Limerick Academy -y. Davis, 11 Mass. R. 115; 
but he sustained the defence as legal. So here I should not 
pause or hesitate to sustain the plaintiff, however hateful his 
occupation, when he has shown his right to legal impunity for 
reputational infanticide. We must therefore appeal to and abido 
the law as evidenced by the decisions. 

Spencer, J., in Brooker-y. Coffin, 5 John. R. 191, in solving 
the question whether a general charge of common prostitution 
was actionable, laid down a rule as a test, that " in case the 
charge, if true, will subject the party charged to an indictment 
for a crime involving moral turpitude or subject him to infamous 
punishment, then the words will be in themselves actionable ; 
and Baron Comyns considers the test to be, whether the crime 
is indictable or not, (1 Com., tit. Action on the Case for Defa- 
mation, F. 20.)" And this rule has been approved in many 
cases. Schgeffer -«. Kintzer, 1 Binney R. 542 ; Mc Clurg v. Ross, 

NOVEMBER TERM, 1855. 73 

Stewart v. Howe. 

5 Binn. R. 218 ; Andres and wife v. Koppenheafer, 3 Serg. & 
Raw. R. 259 ; McCune v. Ludlum, 2 Harrison N. J. R. 17. 

Again, in Van Ness ??. Hamilton et al., 19 Jolin. R. 367, 
Spencer, J., re-defines a test rule of the actionability of words 
of spoken slander: "The words must either have produced a 
temporal loss to the plaintiff, by reason of special damage sus- 
tained from their being spoken, or they must convey a charge of 
some act criminal in itself, and indictable as such, and subject- 
ing the party to an infamous punishment, or they must impute 
some indictable offence involving moral turpitude. To maintain 
an action for a libel, it is not necessary that an indictable offence 
should be imputed to the plaintiff. If a libel holds a party up 
to public scorn, contempt and ridicule, it is actionable (9 John. 
R. 214 ; 7 John. R. 246)." This is approved in the above case of 
McCune V. Ludlum, and indeed seems warranted not only by 
the modern but earlier reports. 

Thus in Ogden v. Turner, 6 Mod. R. 104 : "There goes Ogden, 
who is one of those that stole Lord S.'s deer," it was held that 
"words which are of themselves actionable, without regard to 
the person, or foreign help, must either endanger the party's 
life, or subject him to infamous punishment ; and it is not enough 
that he may be fined and imprisoned, for if one be found guilty 
of any common trespass he shall be fined and imprisoned, yet 
none will say, that to say one has commited a trespass, will bear 
an action ; or at least the thing charged uponhim must, in itself, 
be scandalous ; and this here is, that ' he stole a deer,' which 
is a/er» naturas, and therefore not scandalous." 

In Purdy v. Stacy, 5 Burr R. 2698, it was held that a charge 
of having given £200 for a warrant to be purser of a man-of-war 
was not actionable, because it did not show that the money was 
given to the Commissioners of the Admiralty, who appoint pur- 
sers. Given to fchem, it would be criminal in the corrupter and 
the corrupted. " In the present case it is defectively laid, and 
does not appear to be defamation, or a charge of any indictable 

Comyns enumerates a great many actionable charges of this 
class, which endanger life, as charges of treason, murder, or 
other felony ; corporal punishment, as perjury and subornation 
of perjury, and others which subject a party to indictment, &c. 
1 Comyns' Dig., tit. Actions on the Case for Defamation, D. 1 to 
D. 10. 

The same general rule is shown by the cases where the words 
were held not actionable for the same reasons. Thus in Mayne 
'y. Digle , Freeman R. 46, in 1672, with a colloquium of encom- 
passing a house to break it open and rob it, Digle said: "It 
was Mayne and J. Disne, that were about to rob Ed. Cooper's 


Stewart -y Howe. 

house," wliicli merely imputed a design and no action towards 
its accomplishment. Hext v. Yeomans, cited in Cromwell v. 
Denney, 2 Coke R. pp. 14, 15, held that words charging another 
with seeking his life, and imputing a suspicions of felony^were not 
actionable, for like reasons, with many other illustration of 
like character. "Thy boy [plaintiff's wife's son,] hath cut my 
purse, and thou hast received it knowing it, and hath the rings 
and money that were there, in thy hand therefore, I charge thee 
with felony," held not actionable, " for it doth not appear that 
the purse was cut feloniousli/, and then the receiving of the boy 
and the things which were in the purse, is not felony." Cox -w. 
Humphreys, Croke Eliz. 889. And herewith agree the modern 
rulings, except an innovation now and then upon the common 
law, and an occasional statutory addition thereto, embracing 
charges of false swearing, want of chastity, and such like very 
scandalous matters. 

Lord Holt said, in Ogden v. Turner, " that to say of a young 
woman that ' she had a bastard,' is a very great scandal, and for 
w^hich, if he could, he would encourge an action ; but it is not 
actionable, because it is a spiritual defamation, punishable in 
the spiritual courts. So it is to call a man a ' heretick.' " 

This point is then well settled, and fortfiiyed by authority, and 
I have cited more at large to show that I admit the rule with 
its alleged reasons, whenever the question is and in settling, 
whether words are actionable in themselves. 

What then follows in its application, with the reasons upon 
which it is founded, to the case in hand ? The words here are 
clearly actionable in themselves, in their ordinary and legal 

But it is contended by the plaintiff's counsel, and with great 
force and plausible and ingenious reasoning, that the reasons 
for the actionable character of the words themselves, extend to 
and include the actual state and condition of the defendant 
here, and the facts establishing that condition. And when from 
the condition, of the defendant she is not, as matter of law pun- 
ishable in that condition, although a punishable crime is charged, 
yet thereby the words cease to be actionable. 

This is truly to me a new view of the subject. I had been 
accustomed to look at the charge, in order to determine its sland- 
derous character, through the medium of Ihe characteristics 
that distinguish actionable from non- actionable charges. 

Now we are required to turn from the character of the charge, 
to the character of the subject of it. Punishableness is now said 
to be an essential, an indispensable, element of fact in the person 
accused, as well as for the crime alleged or imputed. 

Therefore, as by our statute, no child under ten years can be 

NOVEMBER TERM, 1855. 75 

Stewart v. Howe. 

punished for larceny, these words, though actionable at common 
law, and imputing a crime, infamous in character, and punisha- 
ble by indictment, fine and imprisonment, are not actionable 
when spoken of one not subject to that punishment in fact, by 
reason of the exemption of persons of such tender years. 
Scandal, as an element of slander, and malice, are lost sight of, 
by this view. Is this supported by the authorities, and the 
nature of slander, as an injury, or the reasons for offering, and 
the various grounds upon which redress will be afforded? 

I think not, and must be indulged in a further view of the 
doctrine of slander, in support of the distinctions, which, I 
think exist. Indictableness and punishableness for the crime 
imputed by the words, and the infamy and scandal attendant upon 
such crimes and punishments, seem to have been chief elements, 
with the founders of the law of slander, in fixing upon rules for 
ascertaining and redressing injuries of this sort, arising from 
that class of charges which imputed crime. But this by no 
means comprehended the extent of that system, which was 
adopted on this subject. 

By Statute 2, Rich. 2-5, confirmed by Stat. 12, Rich. 2-11, 
those who devise or speak false news, lies, or other such false 
things of the prelates, dukes, earls, barons and other nobles and 
great men of the realm, and of the chancellor, treasurer, clerk 
of the privy seal, steward of the king's house, justices of the 
one bench or the other, and other great oifficers of the realm, &c, , 
and which is part of our common law, so far as the characters 
are found amongst us, is the foundation of ourscandalum magna- 
tum — the clergy found protection from charges which would scan- 
dalize and disgrace as well as those from which temporal injury, 
by loss of place, might ensue. The owner and the heir to real 
estate found protection under this law of slander, from claims 
to, or aspersions of, title — and charges of bastardy which 
might work a disherision of his descent. Professional men and 
trades-people were within its pale in their profession and 
callings. Legislators and justices of the peace had over them 
the same shield — and all persons in every walk and condition 
of life might seek reparation and redress for ihe particular dam- 
ages occasioned by false, malicious and defamatory language, 
whether in affairs of business, of the heart, or servile character 
only. See 1 Comyns' Dig., tit. Actions on the Case for Defama- 
tion, C. 1, 2, D. 1 to 30, E. 1 to 9, F. 1 to 22. And to all this is 
added the law of libel, where redress is given for things not 
actionable when merely spoken — but which are false, malicious 
and defamatory. 

The law as a system in this branch of it, in relation to slan- 
der, had a larger view, and a wider scope than is supposed by 


Stewart v. flowe. 

the views contended for in the argument. In an early day it 
reached a great way to redress the injuries inflicted by the 
tongue, that unruly evil, full of deadly poison, which no man 
can tame, but which will be punished. In King v. Lake, 2. 
Ventres R. 28, C. J. Vaughn said that, in ancient books, we read 
nothing of words that did not concern life. "The growth of 
these actions will spoil all communications," " their progress ex- 
tends to all professions." But the other three justices held 
that an action would lie for writing to the client of an attorney, 
" that plaintiff would give vexatious and ill counsel, and stir up 
a suit, and that he would milk her purse, and fill his own large 
pockets," by which that and other clients were lost. 

In Gainford v. Tuke, Cro. Jas. 536, the words were, " Thou 
wast in Launceston gaol for coining." Plaintiff replied, " If I was 
there, I answered it well enough." Defendant rejoined, " Yea, you 
were burnt in the hand for it." They were held actionable, for 
" these are malicious words, and show his intent to accuse him 
for being imprisoned for coining ^' — and subsequent words do 
not diminish, but aggravate. So in Boston v. Taturn, Cro. Jas. 
623, words in the past tense: " He was a thief and stole my 
gold," were actionable, " for it shall be intended to be mali- 
ciously spoken, and to discredit him. And it is a great slander 
to be once a thief ; — for although a pardon may discharge him 
of the punishment, yet the scandal of the offence remains ; for 
pcena 'potest redimi, culp)a per*^ nuis exit ; and it ought not to be 
intended, that it was when he was a child." 

These and other cases are referred to b^i Mr. Starkie in his trea- 
tise on slander, 1. Stark. Sland. 19, 20, for the purpose of showing 
that criminal liability is not always the peculiar and exclusive 
ground of action, for even this class of slanderous words : — and 
a future liability is to punishment for the offence charged, if true, 
is not indispensable to maintain this action. Van Aiken Ti. 
Westfall, 14 John. R. 232, is upon the same ground, for the 
words spoken, "he is a thief, and has stolen fifty dollars in cash 
from Jacob De Witt," was of a transaction in another State, and 
although the objection was taken, that he would not be liable to 
punishment in N. York, if true, yet the court held that the 
action would lie. This has been feebly challenged in a note to 
1 Stark, on Sland, 21, note 1, p, 43, note 1, as uncalled for 
and against the rule laid down in Brooker ?). Coflfin, 5 John. 
R. 188. 

Whether called for as a decision, or thrown out as a dictum, 
I think both the law and good sense will sustain it — and I am 
unable to detect the conflict between the decisions. In Brooker 
V. Cofiin, the court laid down a rule to test the actionable char- 
acter of words imputing a want of chastity — and in Van Aiken 

NOVEMBER TERM, 1855. 77 

Stewart v. Howe. 

1). Westfall, tlie court simply applied the well settled rule of law 
upon words actionable in themselves, by holding the defendant 
liable for speaking them, without regard to his special pleading 
by way of defence of his victim, against a criminal liability for 
what he had charged. 

Once license malice to prefer all charges of scandalous and 
nf amous matter, and justify it upon the ground t hat there is no 
ocal or present, or future liability criminally for it, if true, 
and 'the law of slander will become a mockery and a means, 
rather than a redress for slanders and injuries of this character. 
No better illustration, can be given than this case. She is 
charo-ed with stealing. She is only a few days under ten years. 
The'^statute exempts infants under ten, from criminal punish- 
ment, upon an inflexible rule, deeming them dolz incajmx for 
want of intellect. The common law, between seven and four- 
teen, fixed upon the flexible rule of capacity, in fact, to discern 
between rio"ht and wrong. This is the more sensible, and ours 
the more convenient and easy of application, and more tender 
of life and liberty. It is a rule of policy and humanity. But 
we all know from observation the precocious development of some 
minds as well as bodies. Imputations of this character, made 
upon a young mind of precocious and clear discernment, will 
disparage and scandalize as fully and maturely as if made of 
adults and indeed, much more than some adults, if the degree 
of intelligence of the accused, is to be the measure of damages. 
When we adopt the imbecility of infancy as a test of the action- 
ability of words, we should also adopt the degree or quantum 
of intelligence as the measure of damages in adults. 

The law may and will spare infancy, but the slanderer cries 
aloud and spares not. I am not called on to say how_ young a 
plaintiff may sustain this action for words imputing crime, but, 
as called upon in this case, 1 am compelled to say that this 
plaintiff shall not shield himself from accountability, by alleging 
defendant's infancy, which should have afforded a conclusive 
reason for charitable forbearance of his malice, and shall no 
constitute a shield and ground of defence to him. 

Judgment affi^rmed. 

Skinner, J., dissented. 


Yaughan v. Thompsori. 

Joel Vaughan, Plaintiff in Error, v. John Thompson, 
Defendant in Error. 


If a debtor has no more property in his hands than the law exempts from execu- 
tion, he is not required to turn out one piece of it for an officer to levy upon, as 
the condition upon which he may retain the residue. 

A mortgage of property by a person who does not hold more than the amount ex- 
empted by law, is not in fraud of ci editors. 

Property exempted by law may be sold or exchanged by the debtor, without sub- 
jecting it or its equiyalent to execution, (a) 

A mortgagor in possession of property exempt from execution, may maintain an 
action against an officer who improperly levies thereon. 

This suit was instituted before a justice of the peace to re- 
cover the value of a mule seized and sold by defendant, as a 
constable of Massac county, which mule was alleged by plain- 
tiff below, to be exempt by law from levy and sale on execution. 

The evidence showed that at the time defendant below sold 
the mule in question on an execution against Vaughan, as also 
at the time the execution was served on Vaughan, he claimed 
the mule as being exempt from execution, and notified the offi- 
cer of his claim at the time ; that Vaughan was the head of a 
family and residing with the same ; that Vaughan was poor and 
had but little personal property — the mule worth thirty or thir- 
ty-five dollars, an old mare not worth anything, one or two 
cows and a few hogs, cows worth ten dollars each, hogs in all 
worth about fifteen dollars ; that Vaughan classed as a farmer in 
the community, and the mule was suitable to his condition in 
life ; that defendant below went on and sold the mule at con- 
stable's sale. It appeared by the evidence that Vaughan, some 
time before this, had bought a wagon of one Smith at eighty 
dollars, to be paid in equal payments at six and twelve months, 
in cord wood, to be delivered on the bank of the Ohio river at 
Metropolis, and that to secure said payment Vaughan had agreed 
with Smith that Smith should hold a lien upon the wagon to se- 
cure the payment, and in case of failure, that Smith was to have 
the wagon back again, and for the wear and tear of the wagon 
during the year, in case of failure in payment as agreed, then 
Smith was to have the mule in question, and that there was a 
writing expressing this contract ; that the wagon was delivered 
to Vaughan, and he had been using it some time, say between 
six and twelve months, at the time the mule was levied on and 
sold by Thompson ; that the possession of the mule never 
passed from Vaughan to Smith up to the time it was seized and 
sold by Thompson. 

(n) Green vs. Marks, 25 HI. R. 223 ; Brown vs. Coon, 36 Id. 248 ; Ives vs. Mills, 37 
34 Id. 76 5 Bliss vs. Clark, 39 Id. 500. 

NOVEMBER TERM, 1855. 79 

Yaughan v. Thompson. 

J — . . — ——^— . ; 

This cause was tried before Parrish, Judge, and a jurj, at Oc- 
tober term, 1855, of the Massac Circuit Court, and resulted in a 
verdict for the defendant. The plantiff below brings the cause 
to this court for review. 

J. Jack, for Plaintiff in Error. 

T. G. C. Davis, for Defendant in Error. 

ScATES, C. J. There is error in the refusal of instmctions 
asked by plaintiff, and in part of those given for defendant as 
well as in refusing a new trial. 

It does not appear from the evidence that plaintiff had any 
property subject to be levied on by this execution. The whole, 
not specifically exempted, is shown to be woith fifty-five or 
sixty dollars — the latter sum, by valuing the mule at thirty-five, 
the hogs at fifteen and the cow at ten dollars. Where a debtor 
has no more than is specifically exempted, or may be claimed as 
suitable to his condition, the law will not require him to turn 
out one piece thus secured to him, as the condition upon which 
he may be allowed to assert his claim to another. Nor do I re- 
cognize the position that he forfeits his right to such property by 
mere prevarication, pretending that he has, when he has not 
other property. If the officer will sell, under the belief and 
pretence that the debtor has other property which he neglects 
or refuses to offer in lieu of that taken, or because the debtor 
neglects or refuses to bring it to him at a particular time and 
place, he must sell at his own peril of the truth as it may be 
shown to be. The defendant was clearly, distinctly and repeat- 
edly notified by plaintiff and his wife that he claimed the mule 
under the law, and as distinctly informed by the defendant that 
he would sell the mule if plaintiff did not bring him other prop- 
erty in lieu of it. There is no principle settled, either by the 
facts, or in the argument of the court, in Cook v. Scott, 1 Gil. 
R. 333, which would require plaintiff to comply with this de- 
mand as a condition of releasing the mule, for the simple reason 
that plaintiff had no more property than he could exempt by 
claim. If the defendant doubted this, it was his duty to have 
made inquiry and set apart to the value protected by law, res- 
pecting the plaintiff's selection, which, for any proof in this 
record, he had neither waived, abandoned or lost the right to 
make. He chose to disregard the plaintifi 's rights in the mat- 
ter then, and must now meet and answer to the true state of 
facts as presented on this trial, and that clearly appears to be, 
that all the property, including this mule, was worth only about 


Vaughan v. Thompson. 

the amount he was entitled to hold exempt from levy and sale- 
This principle is clearly recognized and sanctioned in Mc Clusky 
7). McNeely,3 Gil. R. 578. 

The defendant has partly placed his defence upon the ground 
of a fraudulent sale of the mule to Smith, with a view to hinder 
and delay Hanna in the collection of his debt, and relies upon 
the case of Cassall v. Williams, 12 HI. R. 887. There is a simi- 
larity in the facts, but there is this essential difference : that 
judgment was upon the ground that the property was shown to 
belong to another and not to the debtor ; and the court say 
that may be shown by a fraudulent sale before or a bona fide 
sale after, that delivery of execution. 

Neither of those facts exist in this case. There has been no 
sale of the mule to Smith. The transaction is shown to have 
been a mortgage. But whether a sale or a mortgage, it could 
not have been fraudulent as to Hanna, as the property was not 
s'ubject to sale for his debt, and could not be, while plaintiff pos- 
sessed less than sixty dollars worth. I presume a debtor may 
sell or dispose of, as he thinks most conducive to his interest, 
such property as is secured to him, free and exempt from the 
execution and claims of creditors. I do not construe the law 
as requiring him to keep it in kind, and withdrawing its pro- 
tection the moment it is disposed of for such articles as varying 
circumstance may make suitable, or necessity may render indis- 
pensable to the wants, maintenance, support or relief of the 
debtor's family. It might become indispensable to exchange 
such property for bread or medicine, as well as advantageous in 
a general view of bettering his condition by converting its value 
into something more suitable to provide a home, furnish his fam- 
ily, or prosecute his livelihood. But no matter how urgent the 
debtor's necessities might be, he could not sell, if creditors could 
take the consideration immediately, nor could any one buy, if 
the property became liable in their hands by withdrawal of the 
debtor's protection of it. Such would not, I think, be ^a fair 
construction of the act, nor a reasonable limit to its protection. 
He may dispose, as he deems for his interest, of all such propertv 
upon which creditors have no claims for payment, while it con- 
tinues exempt by his continuing destitution. But it may, I 
should think, become again subject to levy by his subsequent 
acquisition of more property than is so exempted while he re- 
tained the same, so once under protection ; and this would sup- 
ject him to another, or new election. 

Now if this view be correct, I do not see how a sale or mort- 
gage of property thus exempted can become fraudulent to those 
who have no right to levy upon or sell it for their debts. Such 

NOVEMBER TERM, 1855. 81 

Yaugliaii V. Thompson. 

was the condition of the mule, and the mortgage of it to Smith 
could not be a fraud upon, or hinder, or delay Hanna in collect- 
ing his debt bj sale of it when he had no such right whether 
it was mortgaged or not while plaintiff remained owner of no 
more than was so exempt. The question might be changed 
he were shown to be covering sixty dollars worth of other if 
property by exmption and this by mortgage. Then, indeed, a 
bona fide mortgage, as this appears to be, might become fi-audu- 
lent as to creditors by the actual possession of the mortgagor, 
according to the principles settled in Thornton Xi. Davenport et 
al., 1 Scam. R. 296 ; Kitchell v. Bratton, id. 300. The mort- 
gage here is spoken of as being in writing, but is not set forth 
in the record, and is not shown to have been acknowledged and 
recorded as required by the statute. Rev. Stat. 91. So it is 
not shown to constitute any title in Smith, or hindrance in law 
in Hanna's way, if the property levied upon was liable to his 
execution. But it is not liable because exempt by the statute 
protection, and therefore he cannot complain of fraud in mort- 
gaging property not liable for satisfaction of his debt. 

But defendant has a right to m'ge in his defence that plaintiff 
has parted with his property, and is not now, as owner, entitled 
to sue for this penalty. Plaintiff's statements that Smith owned 
the property, and that it was mortgaged to Smith, were admis- 
sible, and were in evidence. But while they were thus made 
erider.ce, there is no circumstance to constitute them an estoppel 
upon him, to now assert by proof, and insist upon the truth of 
the matter as to Hanna. The truth appears to be that the mule 
was mortgaged to Smith as additional security for the payment 
for the wagon, plaintiff continuing in possession of the mule. 
While the mule remains exempt from execution for want of 
other property worth sixty dollars, we think plaintiff, as mort- 
gagor in possession, may sustain this action of trespass for levy- 
ing upon and selling it. 

Mortgagors of land, in possession, are regarded as the true 
and real owners of the estate, and their equity is liable to sale 
on execution . Fitch?). Pinckard, 4 Scam. R. 83. The mort- 
gagor of personalty in possession must have at least a like and 
equal interest where the mortgage is duly recorded, and the- 
absolute property where it is not, so far as creditors and subse 
quent purchasers are concerned, when liable to execution. The 
mortgagor's interest would be of little value to him under such 
cijcumstances if he could not maintain the usual actions for its 
protection. The application of the principles here laid down 
will show that the refusal of the second, eighth, ninth and tenth, 
and the modification of the sixth, instruction asked for by the 
plaintiff were erroneous ; and so the first, fifth and seventh 
ILL. REP. — xvn — 5 


Hall V. Harper. 

instructions asked for and given to defendant should have been 

Judgment reversed and cause remanded for new trial. 

Judgment reversed. 

John W. Hall, Plaintiff in Error, x. William Harper, Jr., 
Defendant in Error. 


Where a minor mates an exchange of a hoi"se belonging to his father, and the 
fatliei apparently acquiesces in the bargain for a considerable time after it has 
been made , he cannot recover the horse, his son has exchanged, in an action of 
replevin, (a) 

This cause was tried before Denning, Judge, and a jury, at 
August term, 1853, of the Johnson Circuit Court. The facts of 
the case will be found in the opinion of tne court. 

Davis and Jack, for Plaintiff in Error. 

J. A. Logan, for Defendant in Error. 

Caton, J. This was an action of replevin for a horse. The 
bill of exceptions shows that in the spring of 1852, a son of 
the plaintiff, about eighteen years of age, and who resided with 
him, exchanged the horse in question, which belonged to the 
plaintiff, with the defendant, for another horse. A few days 
before the exchange the plaintiff forbid his son to exchange the 
torse. After the exchange the son took the horse home to the 
plaintiff. The agreement to exchange was made on Saturday, 
and the exchange was made several days after. The son told 
his father, on the Saturday, the agreement which he had made 
to exchange, and it does not appear that the plaintiff expressly 
approved of or forbid the exchange. The witness does not 
seem to remember what his father said about it, only he says he 
knows his father did not tell him to make the exchange. Nor 
does it appear, from the son's testimony, that his father made 
any objections when he brought the horse home which he got of 
the defendant. The plaintiff was afterwards seen riding the 
horse. A few days after the exchange, the plaintiff told the 
witness, Snyder, that if the horse which his son had swapped 
with the defendant for, " lived and lucked well, he would make 
a horse that would sell for more than the one his son had 

(a) But see Watkins vs. White, 3 Scam. R. 550. 


Hall V. Harper. 

swapped to defendant." The parties lived about two miles 
apart, and met several times ; and on one occasion the defend- 
ant rode the horse in controversy to the plaintiff' s house, but 
nothing was said between them about the exchange of horses 
which had been made. Two or three weeks after the exchange 
had been made, the plaintiff was taken sick and remained ill till 
about the time this suit was commenced. After the exchange 
the son took the horse home to his father's, where he remained 
two or three months ; at the expiration of which time, the 
plaintiff took the horse back to the defendant and offered to 
return him, and demanded of the defendant the horse which his 
son had let him have. The defendant refused to return him^ 
whereupon this suit was brought. 

From this evidence, the jury was well wan-anted in finding 
that the plaintiff had acquiesced in and approved of the 
exchange of horses which had been made by his son, and thus 
adopted that act as his own. He did not repudiate the bargain 
which his son had made for the exchange when he was advised 
of it before the exchange was actually made, but passively 
allowed the executory bargain to be executed ; and when his 
son brought the horse home he made no objections to the 
exchange^ but retained and used the horse obtained of the 
defendant. He still forbore to remonstrate when he met 
the defendant several times subsequently, and even when the 
defendant rode the horse, which he had obtained of his son, 
to his house. It is plainly inferable from the evidence, that 
he retained and treated the horse as his own for about three 
months, without a word of dissatisfaction or disapproval. An 
old and just legal maxim may well be applied to the plaintiff 
here, which says, if he keep silent when duty requires him to 
speak, he shall not be allowed to speak when duty requires him 
to keep silence. His continued silence and long apparent 
acquiescence in the act of his son, well justified the defendant in 
supposing that it met with his entire approval. He cannot be 
allowed to lay by and speculate on the chances of a good or a 
bad bargain, or upon the chances of the horse, procured of the 
defendant, turning out good or bad ; or, to use his own expre- 
sion, " lucking well." If he intended to repudiate the action 
of his son, he should have done so promptly, so that the defend- 
ant might know what he had to rely upon. 

We think a different verdict would not have been justified 
by the evidence, and the judgment must be affirmed. 

Judginent affirmed. 


The People ex rel. Pickering v. Devin et al. 

The People ex rel. William Pickering, Appellant, v. 
Joseph DEvm et al., Appellees. 


Where stock owTied by the State,iii a railroad corporatiou, was legally sold and a 
certificate thereof given, assigned by the Governor, by indorsement theron, the 
purchaser and assignee of such stock had a right to vote thereon for the election 
of Directors, unless some statute of the State, or by-laws of the company 
precribed some other mode of conveyance or additional formality. 

This was a proceeding by quo warranto, commenced by the 
State's Attorney on tbe relation of Pickering, against Joseph 
Devin, Elisha Embree, Robert Parkinson, J, N. Jacques, George 
W. Brown, Francis B. Thompson, Jonas Hardy, Samuel Thomp- 
son and James H. Embree, for usurping the offices of Presi- 
dent and Directors of the Alton, Mount Carmel and New Albany 
Railroad Company. The defendants pleaded to the information, 
that on the sixth day of June, A. D. 1853, there was an election 
held for nine directors of said company, at which all stockhold- 
ers, legally qualified, had been notified to appear and cast their 
votes, at which time the respondents were duly elected, having 
received a majority of all the votes of the legally qualified 
stockholders, and were so declared elected; that they were 
each of them eligible, having the legal qualification required by 
the acts incorporating said company. To this plea the com- 
plainant filed several replications — denying that a legal election 
was held on the said sixth day of June, 1853 — denying that the 
respondents received a majority of all the votes of the legally 
qualified stockholders on the said daj? — denying that the re- 
spondents were stockholders in the corporation. At September 
term, 1854, of the Edwards Circuit Court, the cause having 
been submitted to Marshall, Judge, without the intervention of 
a jury, judgment was entered for the respondents ; thereupon 
Pickering took an appeal. 

The evidence showed that a notice had been given as pleaded ; 
that the election was held as notice required, and that the 
respondents were declared elected ; that a book containing a 
list of stockholders was produced, showing that each of the 
respondents held two shares of stock in said corporation, and 
also a valuation made to relator, showing him to be entitled to 
1494 shares of stock issued to him by the board, for a portion 
of his interest in said road, by virtue of his purchase at a sale 
at public auction, made by the governor of the State, by authority 
of the act of the 12th of February, 1849 ; that said 1494 shares 
of stock had been sold on execution against the company, and 


The People ex rel. Piekering «. Devin et al. 

that Robert Parkinson became tbe purchaser ; that Parkinson 
had transferred one half of this stock to Joseph Devin, and the 
remainder to James H. Northcott ; that these shares of stock 
were those voted on at the election on the said sixth of June. 
Pickering offered in evidence the certificate of the Secretary of 
State, showing that a certificate of entry was made in the books 
of his office, declaring that the State was entitled to 5259 5^0 
shares of fifty dollars each in the capital stock of said company ; 
also, a certificate or declaration from the Governor of the State, 
that Pickering had become the purchaser of the right of way, 
embankments, &c., owned by the State in said railroad, for a 
sum specified, on the payment of which sum, he would be enti- 
tled to the legal evidences of his purchase; also, a conveyance 
fi'om the Governor in conformity to the above certificate ; also, a 
certificate for 5259 Jo shares of stock issued to the State by said 
company, and asigned by the Governor to Pickering ; also, a 
copy of the vote ofi'ered by him on the said sixth day of June, 
for certain persons therein named as directors, on the said 5259 
shares of stock, which was rejected and the rejection thereof 
was written on the back of the vote and signed by the three 
judges or directors of the election ; also, that Pickering offered 
to vote on 3756 shares of stock, which vote was rejected, and 
that the judges of the election refused to allow Pickering to 
vote at that election ; that Pickering exhibited to the judges of 
the election all the evidences of his right and title to the stock, 
as hereinbefore recited, at the time he offered his vote. 

Beecher and Underwood, Attorneys for Appellant. 

Olney, for Defendants in Error. 

Caton, J. Although many of the irregularities urged against 
the election of the defendants, we consider well taken, we shall 
principally confine ourselves to the refusal to allow the relator 
to vote on the stock which he had purchased from the State and 
still held. We shall not enter upon a review of the laws which 
authorized the Governor to sell this stock, and under which the- 
relator purchased it. This point was conceded in the very elec- 
tian under which the defendants claim to hold their offices, for 
by far the greatest number of votes which they received was 
upon this very stock, and the only ground upon which the objec- 
tion was placed to allowing the relator to vote upon the balance 
of that stock which had not been sold on the execution against 
the company, was that its transfer did not appear upon the stock- 
books of the company. This brings us to the simple question 
whether that objection was a valid one. In pursuance of law 


The People ex rel. Pickering v. Devin et al. 

and by order o£ the board o£ directors, there had been issued, 
to the State, a cei'tificate of stock for 5259 50 shares. In pur- 
suance of law, all of the interest of the State in the road was 
sold by the Governor, and a formal conveyance made to the pur- 
chaser, and an assig-nment of the certificate of stock was made 
on the back thereof by the Governor. This vested in the purchaser 
all the rights of the State to the stock, both legal and equitable, 
unless some statute of the State, or by-law of the company, pre- 
scribed some other mode of conveyance, or some additional 
formality. It may well be conceded that the company had the 
right to provide by by-law that stock in the company should only 
be transferred upon transfer-books kept for that purpose, and 
even requiring the old certificates of stock to be surrendered and 
canceled, and new certificates issued to the assignee ; but the 
evidence does not show, nor was there any pretence upon the 
argument, that any such by-law, resolution or order had ever 
been passed, either by the stockholders or board of directors. 
In the absence of such regulation, any mode or form of convey- 
ance, sufficient in law to transfer the title to any other property 
or chose in action which by law is transferable, must be held 
sufficient to vest the legal title in the assignee, and entitle him 
to all the rights and benefits accruing to the legal owner of the 
stock, as much as if it had been transferred on the stock-books 
of the company, had there existed a by-law requiring such a 
mode of transfer. 

Was then the relator entitled to vote, at the election in ques- 
tion, upon the sto^k which he had purchased of the State and 
then held ? To this question but one answer can be given. 

He not only shows to us, upon this record, that the stock had 
been regularly transferred to him, but he laid before the judges 
or directors of the election the evidences of such transfer, the 
same which we now have before us. Upon this evidence of his 
right, he oflFered to vote the 5259 shares for a set of directors 
other than the defendants, but the vote was refused. He then 
ofl"ered to vote 3765 shares, which were left him after deducting 
the 1494 shares which had been sold on the execution against 
the company, and which had already been voted for the defend- 
ants by the assignee of the purchaser at the sheriff's sale. This 
vote was also rejected, and the defendants declaired duly elected. 
Had this latter vote been recieved, it would have decided the 
question at once against the defendants, and would have electeb 
the candidates for which the relator off'ered to vote. Here was 
a manifest and gross violation of the rights of the relator, who 
owned more than two-thirds of the stock of the company, and 
yet who was allowed no voice in the election of the directors 
who were to manage its concerns ; but a set of directors were 


The People ex rel. Pickering v, Devin et al. 

thrust upon him, whose whole previous conduct, so far as this 
record shows, was hostile to his interests, and in whom he well 
might feel a want of confidence. Nor was he deprived of his 
rights in pursuance of any by-law which he, or those who had 
formerly owned the stock which he then held, had ever consented 
to. Had the owners of this stock, or their representatives in 
the board of directors, adopted a regulation requiring any dif- 
ferent evidence of the transfer of the stock than that which was 
presented, the case would have, been different. But there is no 
pretence that such was the case. The persons having charge 
of the election, and who in no way represented the stock or 
stockholders, for the purpose of making rules concerning the 
mode of transfer, arbitrarily disfranchised the relator's stock, 
and treated him as an utter stranger. And in this, too, they 
were guilty of the grossest inconsistency, by allowing the vote 
on 1494 shares of stock for the defendants, of which there was 
no sort of transfer by the State, except the one under which the 
relator claimed the right to vote. 

That the transfer by the sheriff, to the purchaser at his sale, 
was made in a mode conformable to their notions of pro- 
priety, could not help the case, for, in tracing back the title to this 
stock, reliance was necessarily had upon the transfer from the 
State to the relator, for through that alone could any claim of 
right to the stock be asserted. If, then, the relator's title was 
bad, the title of those claiming through him, under the same 
transfer, was necessarily defective also. But these inconsisten- 
cies are of little moment, except as showing the arbitrary man- 
ner in which the relator's rights were treated ; for, although the 
vote admitted on the 1494 shares may have been illegally admit- 
ted, they still got some other votes which secured the defend- 
ants, election, if the vote of tbe relator was properly rejected. 
But we have no sort of doubt that he had a right to vote his 
stock and secure the election of those for whom he offered to 
vote, holding as he did a majority of all the stock oflferirg to 

The election of the defendants was clearly illegal, and in 
manifest violation of the rights of the relator, and a judgment 
of ouster should have been entered by the Circuit Court, whose 
judgment must be reversed, and the proper judgment of ouster 
entered here. 

Judgment reversed^ 


Hite V. Wells 

Lewis Hite, Plaintiff in Error, v. Barkey E. Wells, 
Defendant in Error. 


Each count of a declaration must tiiilyset out the contract and cause of action, 
and, if the evidence does not sustain the count, the action fails ; a party cannot, 
in any subsequent pleading, change the contract so as to present a new or 
different cause of action 

The statute of frauds is the plain law of the land, and it is the duty of courts to 
enforce its provisions. Tliis statute requires the promise to be in writing, 
and the common law makes a consideration necessary to the legal obligation 
of the promise. 

Parties may make valid contracts, though not in Avriting, to pay the debt of, or 
for services rendered for, another ; but the new or orginal contract must be 
declared on ; and this must be founded upon a new and original consideration 
moving to the party making the promise, and the debt of the original debtor 
must not be the consideration for the promise. 

The opinion of the court recites the facts in the case. The 
cause was heard at September term, 1854, of the Marion Cir- 
cuit Court. 

Hayxie and Beecher, for Plaintiff in Error. 

R. S. Nelson, for defendant in Error. 

Skinner, J. Assumpsit by Wells against Hite. 

The declaration contains two special counts. The first alleges 
that one Lyle was indebted to Wells in |208.75 ; that Hite, in 
consideration that Wells would procure from Lyle on order on 
Hite for the money so due Wells, undertook and promised to 
pay to Wells the money due from Lyle to him Wells ; that 
Wells procured the order, and showed and presented the same 
to Hite, and demanded payment of said sum of money ; and 
that Hite refused to pay. 

The second count alleges that Wells had been in the employ- 
ment of Lyle, and that money was due him from Lyle on account 
of such employment ; that Lyle being in failing circumstances, 
he, on account thereof refused to continue in such employment ; 
that Hite thereupon, in consideration that Wells would go on 
and continue in such employment, undertook and promised to 
pay Wells what was due and should become due him, by reason 
of such employment, from Lyle ; that Wells did, in considera- 
tion thereof, go on and perform work and labor for Lyle ; that 
there was due him for such work and labor done and performed, 
before and after said promise and undertaking, the sum of 
.75, and that Hite refused to pay the same. 

To these counts Hite plead the statute of frauds and perjuries. 
To this plea Wells replied, *' that the promises and undertakings 

JUNE TERM, 1853. 89 

Hite V. Wells, 

in said counts mentioned were made by Hite upon new consid- 
erations, moving from Wells to Hite, and not upon considerations 
moving from Lyle to Wells." 

To this replication Hite demurred ; the court overruled the 
demurrer, and Hite abided his demurrer. 

If the plea is a good answer to the counts, it is evident the 
demurrer should have been sustained to the replication. By the 
well established principles of pleading, each count must truly set 
forth the contract and cause of action, and upon trial of the issue, 
if the evidence fails to prove the contract as alleged in the count, 
the plaintiff must fail as to such count. 

He cannot in any subsequent pleading set up another contract, 
add to, or diminish from, the contract alleged in the count, so as 
to present a new or different cause of action. It is upon the 
cause of action alleged in the count alone, that he can recover 
in actions ex contractu. If, in this case, the contracts alleged in 
the counts are such as they are stated to be in the replication, 
then the promises therein alleged need not be in writing, and 
the plea of the statute is no defence ; but it is for the counts, 
and not for the replication, to set forth the contracts, for the 
breach of which the plaintiff sues. 

If the counts state contracts void under the statute, if not in 
wiiting, the plea of the statute is, prima facie^ a complete de- 
fence, and is conclusive, if true. To determine upon the suffi- 
ciency of the plea, the court can only look to the counts, to which 
it is pleaded : if the contracts therein alleged are not within the 
statute, the plea Avill be held no defence ; but if such contracts 
are within the statute, the plea, which alleges that they were not 
in writing, will be held a bar, and, if true, the plaintiff's action 
is taken away by the statute. 

The replication is bad for departure from the counts, if it 
amounts to anything more than an attempt to construe, for the 
court, the contracts stated in the counts ; and, if it is to be so 
regarded, it is equally bad ; for it is the office of a pleading to 
state facts, and for the com-t to construe them. 1 Chitty's PI. 
644 ; Stephens' PI. 410. 

But if the plea is no defence, the demurrer to the replication 
should have been carried back and sustained to the plea ; and 
this compels us to determine whether the contracts stated in the 
counts are within the statute. Myers and Bellinger v. Morse, 
15 John. 426. 

The statute provides, that " no action shall be brought where- 
by to charge the defendant upon any special promise to answer 
for the debt, default, or miscarriage of another person, unless 
the promise or agreement upon which such action shall be 
brought, or some memorandum or note thereof, shall be in writ- 


" Hitet'. Wells. 

ing, and signed by the party to be charged therewith, or some 
other person thereunto hy him lawfully authorized." Chapter 
44, R. S. 

This act is entitled "An act for the prevention of frauds and 
perjuries," and was adopted to give greater security to property ; 
to guard against false contracts, set on foot by fraud and sup- 
ported by perjury. It originated in England in the reign of 
Charles the Second ; has been adopted generally in the United 
States ; and its wisdom is universally acknowledged. Depar- 
tures from the letter and spirit of this statute, both in England 
and the United States, are not unfrequent in the reported cases ; 
and such departures, or rather established exceptions, have on 
other occasions been followed as precedents, with expressions of 
regret that they exist, and of doubt of their policy. 

The statute is an iron rule found necessary to the protection 
of property, requiring more certain evidence of this kind of con- 
tract than in other cases, and like all general rules, is occasionally 
hard in its operation, yet, while it is the plain law of the land, 
it is the duty of the courts to enforce its provisions. The 
promise stated in the first count in this case, is, to pay to Wells 
the debt of Lyle existing at the time of making the promise ; 
the consideration of the promise is stated to be the procuring by 
Wells, from Lyle, a written order on Hite to pay the debt. 

The promise is to answer for the debt of another, and is, there- 
fore, within the statute. But it is insisted that the undertaking 
of Wells to procure the order, and the procuring the same, con- 
stituted a new consideration, and that upon this is based an 
original and independent contract. The plain answer to this 
position is, that the statute requires the promise to be in writ- 
ing, and the common law makes a consideration necessary to 
the legal obligation of the promise. 

Though Hite had promised in writing, a consideration w^ould 
have been necessary to sustain the promise. No promise or 
agreement, except under seal, (which imports a consideration,) 
not founded upon a consideration good in law, can be enforced. 
The promise stated in the second count is : that Hite Avould 
pay Wells what at the time of making the promise was due 
him, and what should become due him from Lyle, for his ser- 
vices performed for Lyle ; and the consideration stated for this 
promise is : that Wells would go on and continue to work for 
Lyle. In this count, as well as in the first count, it is the debt 
of Lyle, though not wholly accrued, which Hite promised to 
pay ; and the remarks m relation to the consideration of the 
promise stated in the first count apply equally to this. 

But, it is insisted that Wells may recover at least for work 
done for Lyle after the making of the promise of Hite. To this 

NOYEMBER TERM, 1855. 91 

Hite V. Wells. 

position we reply, tliat tiie promise alleged is to pay the debt 
due and to become due from Lyle, for which Lyle is answerable 
to Wells, and is wholly dependent upon, and collateral to, such 
debt and liability. 

We understand both counts as based upon the debt and lia- 
bility of Lyle, and not upon an original promise from Hite to 
Wslls, founded upon a consideration moving from the promisor 
to the promisee ; and such is the fair construction of the counts, 
taking the allegations in them most strongly against the pleader. 
We hold the promises as stated in both counts, within the stat- 
ute, and the plea, therefore, a good answer to them. Scott i). 
Thomas, 1 Scam. 58 ; Roberts on Frauds, Chap. 3, Part 6 ; Nel- 
son v. Boynton, 3 Metcalf 396 ; Curtis v. Brown etal., 5 Cush- 
ino- 488 ; Farley v. Cleveland, 4 Cowen 432 ; Elder -». War- 
field, 7 Harris & John. 391 ; 2 Parsons on Cont. 300 ; and Story 
on Cont., Sec. 861. 

It is not denied that parties may make valid contracts, though 
not in writing, to pay the debts of another, or to pay for ser- 
vices rendered foi another. 

In such case the plaintiff must declare upon the new or original 
contract ; it must be founded upon a new and independent or 
original consideration of benefit to the defendant or harm to the 
plaintifi" moving to the party making the promise, either from 
the plaintiff or some other person ; and the debt or liability of 
the original debtor must not be the moving cause, or the consid- 
eration of the promise nor the promise incidental and collateral 
to the debt or liability of such original or principal debtor. 

The statute cannot be avoided by the mere show or form of 
an independent contract. Tt is the substance and force of the 
contract to which courts will look in determining whether the 
contract is an original one, or incidental and collateral to the 
debt or liability of another. 

If Hite was indebted to Lyle, or had funds of Lyle in his 
hands, and upon the faith of the same promised Lyle to pay or 
accept an order, to be drawn by Lyle on Hite, in favor of 
Wells, in such case, we do not doubt Hite would be bound to 
pay the order obtained upon the faith of such promise, although 
the promise was not in writing, [a] 

Judgment reversed and cause remanded. 

Judgment remrsed. 

(a) Smith vs. Kahil, Ante. 69 and notes and post 507. 


Osborne et al v. Horine. 

Ann H. OfiBORNB, et al, Plaintiff in Error, -». Jacob 
Horine, Defendant in Error. ^.,. 


A petition for the assignment of dower is a chancery proceeding ; and the re- 
cord should show the evidence upon whicli the decree was founded ; ami , 
Avhere the answer to the petition admits the right, and no evidence is fur- 
nished of the release of it, this court will presume that a decree whicli does 
not assign dower, is erroneous. 

The opinion of the cou?'t furnishes a statement of the case. 
The decree complained of was rendered at September term, 
1855, of the Monroe Circuit Com-t. 

Abbot, Underwood and Quirk, for Plaintiff in Error. 

G. KoERNER, for Defendant in Error. 

Caton, J. This was a petition filed for the assignment of 
dower. The answer admits the facts set up in the petition, 
showing the right to the dower claimed, and sets up as new 
matter by way of defence a release of the dower by the dowress. 
Upon the hearing, the petition was dismissed at the complain- 
ant's cost, upon which the case is brought to this court for 
review. The record presents no evidence of this release. By 
Section 19, Chapter 34. R. S. , this question was expressly required 
to be filed on tue chancery side of the court, and it must be 
governed by the rules of evidence and practice which obtain in 
that court. Kimball v. Cook, 1 Oilman 428. It has been 
repeatedly decided by this court, that we cannot, in chancery 
cases, presume that any evidence was given in the cause in the 
court below except what appears in the record. White v. Mor- 
rison, 11 111 361. Ward-y. Owens, 15 111, 283. Here the 
answer ac'mits enough for the complainant's purpose^ and the 
record fails to shoAV any proof establishing the defence set up, 
In the absence of such proof in the record, Ave cannot presume 
that any was before the court on the hearing. 

There being nothing therefore to sustain the decree, it must 
be reversed, and the suit remanded. 

Decree reversed. 

NOVEMBER TERM, 1855. 93 

Bradford «, Jones. 

Robert Bradford, Plaintiff in Error, v. John Jones, 
Executor of Michael Jones, deceased, Defendant in Error. 


In a suit against an executor, after the expiration of two years from the date of 
his letters testamentary, upon a demand which had not been presented for al- 
lowance within that time, the judgment should dii-ect,the levy to be made out 
of property belonging to the estate which has not been inventoried, whether 
found previous or subsequent to the judgment. 

This was an action of debt, commenced hj Bradford against 
John T. Jones, executor of Michael Jones, deceased, in the 
Gallatin Circuit Court, on the 7th of Nov., 1849, upon a note 
executed by his testator. 

The general issue was pleaded with notice of several special 
matters, among which was this : that the note sued upon " was 
never exhibited and allowed in pursuance of law against the 
estate of said Michael Jones, deceased, within two years from 
the time of granting letters to the defendant." 

By consent, the matters of law and fact were tried by the 
court, Marshall, Judge, presiding, without the intervention of 
a jury, at July term, 1853. 

The amended notice of special matter shows that on the 
9th of January, 1845, the last will and testament of Michael 
Jones was proven in the Probate Court of Gallatin county, and 
that on the same day letters testamentary were granted to the 

The court found the issue upon the statute of limitations for 
the defendant, and that the plaintiff recover his debt and 
damages and costs, "to be levied and made of the estate of 
said Michael Jones, deceased, which may hereafter be found not 
inventoried or accounted for by the said defendant, as executor 
as aforesaid, at this time, according to the statute in such case 
made and provided." 

This judgment the plaintiff assigns for error. 

N. L. Freeman, for Plaintiff in EiTor. 

Olney, for Defenda,nt in Error. 

Caton, J. This suit was brought against an executor after 
the expiration of two years from the time letters testamentary 
were granted, and upon a demand which had not been presented 
for allowance within that time. The Circuit Court gave judg- 
ment for the plaintiff, " To be levied and made of the estate of 


Bradford t. Jones. 

the said Michael Jones, deceased, which may hereafter be found 
not inventoried or accounted for by the said defendant as execu- 
tor as aforesaid, at this time, according to the statute in such 
case made and provided." 

This portion of the judgment is assigned for error, because it 
restricts the plaintiff to obtain satisfaction of his judgment out 
of property belonging to the estate, which should be found sub- 
sequent to the rendition of the judgment. We think the error 
is well assigned. The language of the statute is : "And all 
demands not exhibited within two years shall be forever barred, 
unless such creditor shall find other estate of the deceased not 
inventoried or accounted for by the executor or administrator." 
It has already been decided that this statute, is not an absolute 
bar to the recovery of a judgment, but that it must be a special 
judgment, the satisfaction of which can only be sought from 
property belonging to the estate subsequently discovered. 
Thorn v. Wolson, 5 Gilman 26. We are now called upon to 
determine with more precision what property falls within this 
description. Upon this point we think the meaning of the 
statute is ver;y plain. The law requires the executor or admin- 
istrator to make out and file with the Probate Court an inven- 
tory of the estate, both real and .personal, which shall come to 
his possession or knowledge. R. S. 554, Sec. 81. And by 
Sec. 89 he is required to file further inventories of debts and 
liabilities as occasion may require, so that the records of the 
Probate Court may present as fully the condition of the estate 
as is known to the executor or administrator. It was evidently 
the intention of the statute to allow debtors, who had neglected 
to present their claims against the estate within the two years, 
to seek satisfaction out of any property belonging to the estate 
which had not been thus inventoried, and which they can find 
and thus apply, assuming, as the law might well assume, that 
the inventories would show all, of which the executor or admin- 
isti'ator had any knowledge. It is a matter of no moment, and 
can make no difference with the debtor's rights, whether the 
estate not inventoried is, discovered before or after he obtains 
his judgment, or even the commencement of his suit, or even 
whether he himself first finds such property. The test pre- 
scribed by the statute is whether it has been inventoried or 
accounteb for by the executor or administrator. If it has not 
been, and he can find or get hold of it, he is entitled to have it 
applied to the payment of his debt, in the mode pointed out by 
the statute. It was urged in argument that the object of the 
statute was to stimulate the vigilance of the creditor to find 
other property of the estate, and to reward such vigilance by 
allowing him to seek satisfaction out of such as he alone should 

NOVEMBER TERM, 1855. 95 

Lane v. Bommelmann. 

discover ; and if the executor or administrator, or any one else, 
should discover the property before him, he should have no 
right to resort to it. This would present an impracticable 
issue, and one not contemplated by the law. Of course he can- 
not seek satisfaction out of such subsequently discovered estate 
till he finds or discovers it. In many, if not in most cases 
such property must be in the knowledge of somebody, and pos- 
sibly in the knowledge of the executor or administrator ; but 
when the debtor discovers or finds it, the law has secured him 
the benefit of it. It then becomes subsequently discovered 
estate within the meaning and language of the law. (a) 

The judgment of the Circuit Court must be reversed and the 
cause remanded, with directions to that court to enter a judg- 
ment conformable to the principle here laid down. 

Jud":nient reversed 

Margaret B. Lane, Plaintiff in Error, v. Francis Bom- 
meLmann, Defendant in Error. 


All public acts of congress in relation to the public lands, and tbe acts of such 
officers to whom execulion of them is confided, as are required to make and 
keep public records in relation thereto , may be shown by the public records, or 
by copies duly avithenticated, and these are admissible in evidence. 

If a record shows that a court had jurisdiction ofthesubjectmatter and the per- 
son, the judgment rendered by the court cannot be collaterallv questioned for 
errors of substance or form. 

A certified copy of a patent for land issued by the United States, may be offered 
in evidence. 

A report of commissioners in partition not under such is good collaterally. 

This Avas an action of ejectment brought by the plaintiff in 
error to recover possession of the east half of lot two in north 
half of claim 2209, survey GOT, in St. Clair county, which by 
consent of parties was tried by the court, Breesb, Judge, presid- 
ing, without a jury, at July term, 1854. The plaintiff claimed 
a fee in the premises. Plaintiff introduced an exemplification 
of a patent from the U. S. to John Edgar and Arthur St. Clair, 
Jr., dated 7th August, 1817, for said claim and survey, which 
was admitted pro forma. And then offered to produce in evi- 
dence, a judgment of the Circuit Court of St. Clair county, 
made at the September term, 1833, of partition of said claim 
and survey, (the petition i'l the case having been filed on the 
3rd April, 1833,) between the heirs of said John Edgar, and 
the heirs of Arthur St. Clair, Jr., whereby, in the language 

(a) Judy et al. vs. Kellv, 11 111. R. 217 ; Peacock vs. Haven, 22 HI. K. 25 ; Rosen- 
thal Admr. vs. Magee, 41 lU. R. 376. 


Lane v. Bommelmann. 

of the order of court, "The northern half to fall to the lot of 
John Edgar's heirs, and the southern half to the lot of Arthur 
St. Clair's heirs," to the reading of which in evidence the de- 
fendants objected, which objection was sustained by the court, 
and the same excluded ; to the excluding of which the plaintiff 
at the time excepted. 

Plaintiff then offered in evidence the petition of Wm. Morrison, 
adm'r of John Edgar, deceased, to the Circuit CoUrtof Randolph 
county, for the sale of this land among others, to pay debts of said 
estate ; which petition was filed on the 16th of April, 1833, 
(which wag subsequent to the commencement oi the suit for 
partition in the St. Clair Circuit Court, ) and the order of sale 
granted thereon, made at the April term, 1834, (subsequent to 
the judgment in partition in St. Clair Circuit Court, ) to sell all 
the interest of John Edgar at the time of his death in said claim 
2209, survey 607, together with other lands. Also the deed 
from William Morrison, administrator, to Ninian W. Edwards, 
for said laud, dated Aug. 26, 1834, and deed from Ninian AV. 
Edwards and others to the plaintiff, dated May 4, 1854, several 
tracts of land, embracing the tract in controversy, together with 
the deed referred to in said last deed mentioned. 

The court found for the defendant. 

Plaintiff moved for a new trial, which was overruled, to which 
plaintiff excepted and brings the cause to this court, and assigns 
for error the judgment of the court below in excluding said judg- 
ment of partition from the evidence. 

G. Trumbull, for Plaintiff in Error. 

G. KoERNER, for Defendants in Error. 

ScATES, C. J. A certified copy of the patent was admitted in 
evidence pro forma below, and is now objected to, on the ground 
that such copies are not embraced within the statutes of the 
State, or the United States, relating to copies of records as evi- 
dence. True it is not — nor need there be any statute for that 
purpose, as it is admissible at common law. The power of the 
government for the disposition of the public lands, has its founda- 
tion in the constitution itself. All public acts of Congress for 
that purpose, and of public ofiicers in their execution, who are 
required to make and keep public records of their surveys, sales 
and conveyances, may be competently shown by the public 
records thus made and kept, or by copies thereof, duly certified 
by the proper officer under seal of his office. 1 Stark. Ev. 226, 
230, 251 ; 3 Bacon Abrid. tit., Ev. F. p. 533, Ed. 1846 ; Wick- 
liffe V. Hill, 3 Littell R. 330. («) 

(o) Patterson vs. Winn, et al. 5 Teters 233 ; Lee Impl. etc. vs. Gett>-, 26 111. R. 80. 

NOVEMBER TERM, 1855. 97 

Lane v, BommelmaTin. 

These documents or records cannot be removed without great 
inconvenience and danger of being lost or damaged, and they 
may be wanted in two places at the same time. 1 Stark. Ey. 251 . 
See Lynah v. Gierke, 3 Stalk. R. 154. 

"The extraordinary degree of confidence thus reposed in such 
documents, is founded principally upon the circumstahce that 
they have been made by authorized and accredited agents 
appointed for the purpose, and also on the publicity of the sub- 
ject matter to which they relate, and in some instances upon 
their antiquity. Where particular facts are inquired into, and 
recorded for the benefit of the public, those who are to act in 
making such investigations and memorials, are in fact the agents 
of all the individuals who compose the public, and every member 
of the community may be supposed to be privy to the investiga- 
tion." Therefore they " are generally admissible in evidence, 
although their authenticity be not confirmed by the usual and 
ordinary tests of truth, the obligation of an oath, and the power 
of cross-examining of the parties on whose authority the truth 
of the document depends, for duly certified copies are ad- 
missible as well as sworn copies. 1 Stark. Ev. 230 ; 1 Greenleaf. 
Ev., Sees. 483, 484, 499, 500, 501 ; United States ^. Percheman, 
7 Pet. R. 85. {a) 

The petition for partition, report of commissioners, and decree 
under which plaintiff derives title, where offered, and excluded, 
on the ground that the report of the commissioners for parti- 
tion was not under seal. The act of 1827 directed the pro- 
ceedings of the commissioners to be returned by them " under 
their hands and seals." Rev. Laws 1833, p. 239, Sec. 14. In. 
Bledsoe -y. Wiley's lessee^ 7 Humph. R. 507, such a provision, 
was held to be directory merely, and an omission of the seal did 
not vitiate the record of partition. (6) Whatever force this objec- 
tion might have on appeal or writ of error in the case, we can 
allow it none as a collateral attack upon such proceedings, 
which were approved by the court, were spread of record, and 
confirmed by a decree in partition, which has been aquiesced in 
and acted upon by the parties to it, for twenty years, so far aa 
anything is shown in the record. Of the same character is the 
objection to the misdescription of the land in the notice of pub- 
lication, together with all others made to this record. 

No greater weight can be allowed the objections to the record 
of proceedings and decree for the sale of the lands of Edgar, 
on the petition of his administrator. The court of Randolph 
county had jurisdiction under the 98th section of the Statute of 
Wills of 1829. Rev. Stat. 1833, pp. 644, 645, Sees. 98, 101 . 
Where the record shows jurisdiction of the subject matter 
and the person, it is too well settled to require further discus- 
Co) 2. U. S. S. at large, 7377 Id, 111. 627. 418. ttt -dt^p ^^-r-r fi 

(6) Sullivan v«. SuUivan, 42m. R. 318. ^^' ^^^' ^^^ " 


Adair v. Maxwell. 

sion, that the judgment of the court canuot be collaterally 
questioned for errors of substance or form intervening. Buck- 
master et al., V. Jackson et al., 3 Scam. R. 104 ; Swiggert et al. 
V. Harber et al.,4 Scam. R. 36-1 ; Young et al. n. Lorain et 
al., 11 111. R. 624; Buckmaster -y. Ryder, 12 111. R. 207 ; 
Thomson v. Tolmie et al., 2 Pet. R. 157 ; Voorhees et al. -d. 
Jackson ex dem., 10 Pet. R. 449 ; Willcox-y. Jackson ex dem., 
13 Pet. R. 498 ; Lessee of Guynore et al. v. Astor et al ., 2 
How, U. S R. 319 ; Wright v. Marsh et al., 2 Green. Iowa R. 
94 ; Doe ex dem. Hain et al. v. Smith, 1 Carter la. R. 451 ; 
Cole v. Hall, 2 Hill R. 625. 

So far as the partition and allotment under, and the deed 
from the executors of N. Edwards is concerned, there is a link 
wanting in the chain of evidence, to show any relevancy in 
these as testimony. 

If Ninian Edwards bought the land at Morrison's sale, and 
took a deed in the name of Ninian W. Edwards, and the lands 
■were devised to the executors, then these additional facts are 
necessary to show that title was derivable through a partition 
amongst his heirs, and the deed of his executors. As the record 
stands, these portions of the evidence appear wholly irrelevant. 
Judgment reversed and cause remanded for new trial. 

Judgment reversed. 

William Adair, Plaintiff in Error, ?). Ferdinand Maxwell 
Defendant in Eiror. 


A. B., a land ofBcer, employed C. D. as his clerk, who was to receive for his 
services one half of the salary and compensation allowed to A. B. ; this com- 
pensation was increased retrospectively : Held, that C. D. was entitled to 
one-half of the increased compensation. 

This cause was submitted to Breese, Judge, without the inter- 
vention of a jury, at October term, 1855, of the Randolph Cir- 
cuit Court, who found for the defendant in error, and gave a 
judgment in his favor for $475.27 and costs. Whereupon the 
plaintiff in error brought the record to this court. 

The facts of the case will be found in the opinion of the 

W. H. Underwood, for Plaintiff in Error. 

G. KoERNER, for Defendant in Error. 

NOVEMBER TERM, 1855. 99 

Stetham i). Shoultz. 

Caton", J. Adair was register of the land office at Kaskaskia, 
and in November, 1854, employed Maxwell as clerk in said 
office. Adair was to pay Maxwell one-half the salary and one- 
half the compensation allowed the receiver. The services sued 
for were far the quarter next before the passage of the act of 
March 3rd, 1855. That act increased the compensation of the 
receiver retrospectively, ^covering the time during which the ser- 
vices sued for were rendered, and the only question is whether 
Maxwell is entitled to one-half of such increased compensation. 
I hardly know how to argue this question. If this additional 
pay, which was given to the receiver, was designed as an addi- 
tional compensation for the services rendered in his office, which 
is clearly the intention of the law, then the agreement is that 
Maxwell should have one-half of such additional compensation. 
Clearly one-half of the compensation provided for, meant one-half 
of all the compensation allowed by law, or which the party 
should receive according to the law. Had the salary of the reg- 
ister been reduced after the bargain was made, Maxwell would 
have been bound to serve the time agreed upon, taking half of 
the reduced salary. By the contract the clerk took his chances 
of compensation the same as the receiver did. I can only say 
such was the agreement, and the parties were bound by it. 
__ The judgment must be affirmed. 

Judgment affirmed. 

William M. Stetham, Appellant, ■». John Shoultz, - 


"Where one of three defendants asked to have a judgment set aside, upon the 
ground that his co-defendants, who assented to a trial, were sureties for him 
on the note sued on, and did not know his defence, and that he had been too 
sick to attend court and make his defence, which was denied, it is held by 
this court that proper diligence was not shown, and that the application to 
the Circuit was properly overruled. 

This cause was heard by Breesb, Judge, at August term, 1855, 
of the St. Clair Circuit Court. The statement of the case is 
made in the opinion of theCourt. 

R. F. WiNGATE, for Appellant. 

G. Trumbull, for Appellee. 


Stetham v. Shoultz. 

Skinnek, J. Shoultz sued Stetham, Rose, Davis and Frendley, 
in an action of debt in the St. Clair Circuit Court. 

The writ was sued out to the March term, 1855. At this 
term the defendants appeared and filed their demurrer to the 
plaintiff 's declaration, which was overruled. The defendants 
then filed their plea of non est factum, and several pleas of part 
failure of consideration, upon which pleas the plaintiff took issue. 
The declaration counted upon a sealed note. Stetham then 
moved for a continuance upon affidavit setting forth the consid- 
eration of the note, and part failure of the consideration of the 
same, and alleging that he could prove his defence by one Smith, 
an absent witness. 

The court thereupon continued the cause. At the August 
term, 1855, the parties waived a jury. The cause was tried by 
the court and judgment rendered against the defendants for the 
amount of the note sued on. 

At the same term, Stetham moved the court to set aside the 
judgment, and for a new trial, upon his affidavit setting forth 
that his co-defendants and securities only in the note sued on, 
and were wholly unacquainted with his defence thereto ; that he 
alone had attended to said defence ; that he at the previous 
term employed counsel to make his defence, and that said coun- 
sel had attended thereto but was unable to make such defence 
on the trial, on account of the absence of Stetham ; that Stet- 
ham was prevented by sickness from being in attendance at the 
trial ; that he had been sick and confined to his room for nearly 
a month prior to the day of trial and was then for the first 
time able to leave his home, about twelve miles distant from the 
place of holding court. 

The affidavit sets forth the same defence of part failure of 
consideration, in the special pleas alleged, and that the same 
can be proved by several persons residing in St. Clair county. 
The court overruled the motion. 

Stetham appealed to this court and assigns for error the 
refusal of the Circuit Court to set aside the judgment and grant 
a new trial. The court properly overruled the motion. The 
affidavit does not show diligence in preparing for trial ; nor 
does it negative circumstances from which negligence may rea- 
sonably be inferred. Schleneker et al. v. Risley, 3 Scam. 483 ; 
Crozier v. Cooper, 14 III. 139. (a) 

The sickness of Stetham alone is not sufficient to show that 
his defence could not have been fully interposed by ordinary 
diligence. His witnesses resided in the county, and their at- 
tendance could have been coerced by the process of the court, 
and which he was at liberty to invoke. 

Nor effort was made by either Stetham or his counsel to obtain 

(o) sterns vs. Gettings. 23 Ul. B. 387 ; Cowen vs. Smith, 35 Id. 417. 

NOVEMBER TERM, 1855. 101 

Zarresseller v. The People. 

the testimony of defendant's witnesses, and no excuse is shown 
for not doing so ; nor does it appear that the presence of Stet- 
ham was necessary to the defense. 

Judgment affirmed. 

Anton Zarresseller, Plaintiff in Error, v. The People, 
Defendant in Error. 


The act for the suppression of intemperance, approved February 12th, 1855, did 
not repeal prior laws, providing for the granting of licenses for selling spirit- 
uous liquors, and penalties for selling without such license. 
No portion of this act was to take effect, until after the people should decide 
by a vote to adopt it. 

la construing a statute the intention of the legislature will be considered ; and 
to this end the whole act, the law existing prior to its passage, the motive for its 
passage, and the mischief to be remedied or avoided, will be carefully weighed. 

An indictment which declares the offence to be, the selling" of one gill of spir- 
ituous liquors, " being &c., less than one quart, is sufficiently certain, under 
the license laws of this State. 

An indictment for a violation of the license laws, which concludes " against the 
peace and dignity of the people of the State of Illinois," is within the mean- 
ing of the constitution. 

In cases of misdemeanor, if the defendant waives a jury and puts himself upon 
the court for trial, he cannot assign for error that the court tried the issue. 

This indictment was tried before Parrish, Judge, (a jury- 
being expressly waived) at the September term, 1855, of the 
Marion Circuit Court. The defendant was found guilty. Motions 
for a new trial and in arrest of judgment were overruled. 

Judgment was rendered for a fine and for costs. The opinion 
of the court furnishes a statement of the case. 

G. KoERNER, for Plaintiff in Error. 

J. S. Robinson, State's Attorney, for the People. 

Skinner, J. Anton Zarresseller was indicted in the Marion 
Circuit Court for selling spirituous liquor without license. 

The indictment charges that Zarresseller, on the fourth day of 
April, 1855, at the county of Marion, one gill of spirituous 
liquor, the same being a less quantity than one quart, to one 
Tracy, unlawfully did sell. 

The defendant appeared and moved the court to quash the 
indictment, on the ground that the act entitled, " an act for the 
suppression of intemperance, and to amend chapter 30 of the 
Revised Statutes," approved February 12, 1855, had repealed 


Zarresseller v. The People. 

the laws authorizing the granting of licenses to retail spirituous 
liquors, and the penalties for selling without such license. And 
also, for the reason that the indictment djd not describe the 
kind of liquor sold, and did not conclude in the language of 
the constitution. 

The first question is, did the act of 1855 repeal the laws 
regulating the retail of spiritous liquors, or any part of them? 
According to the principles laid down in the case of Sullivan v. 
The People, 15 111. 233, the laws authorizing the granting of 
licenses to sell spirituous liquors, and the laws providing penal- 
ties for selling without license compose one system, are depend- 
ent upon each other, and the repeal of the one would operate as 
a repeal of the other. If, then, the act of 1855, repealed the 
statutes authorizing the granting of licenses, it also repealed the 
penalties provided for selling without license. But we do not 
regard the act of 1855, as operative to affect these laws in any 
manner whatever. 

The thirty-sixth section of the act of 1855, provides, that 
all laws and parts of laws inconsistent with this act, shall be 
repealed when this act goes into operation ; provided, that all 
prosecutions which shall have been commenced at the time this 
act goes into operation, shall be carried on to final judgment 
and execution as if this act had not been passed ; provided, 
all laws authorizing the issuing or granting of licenses to sell 
spirituous or intoxicating or mixed liquors, shall be repealed 
fiom and after the date of the passage of this act." 

The thirty-ninth section of the act provides that, " The fore- 
going provisions of this act shall take effect on the first Monday 
of July next ; provided, if a majority of the ballots to be 
deposited as hereafter provided, shall be against prohibition^ 
then this act shall be of no force or effect whatever. 

The act then provides for submitting the adoption of the act 
to the people, to be determined h^ vote, and the mode of deter- 
mining upon its adoption or rejection by the people. These two 
sections are apparently conflicting and repugnant ; and it is in- 
sisted that the last proviso of the thirty-sixth section repeals 
the laws authorizing the granting of licenses, and providing 
penalties for selling without license. It is the duty of the court 
to construe these two sections together, and in connection with 
the whole act, and if practicable, reconcile the apparently oppo- 
site provisions, so as to give effect to each provision, and so 
make them result in an harmonious whole. The mere words of 
a proviso should not prevail against the clear object, scope and 
spirit of the act ; the aim and end of construction being to 
ascertain the will of the legislature. 

Taking these two sections together, and with a view to the 

NOVEMBER TERM, 1855. 103 

Zarresseller v. The People. 

whole act, it seems ts us that the legislature did not contem- 
plate or intend that any part of them should have the force of 
law, until the adoption of the act by the people, and until the 
first Monday of July, 1855, in case of such adoption. If such 
was not the intention, why the provisions of the thirty- ninth 
section, that " the foregoing provisions (and which include the 
thirty-sixth section) of this act shall take effect on the first 
Monday of July next," and if a majority of the ballots should 
be against prohibition, " then this act shall be of no force or 
effect whatever" ? 

It is to be recollected that the act provides for the vote upon 
he question of adoption of the act by the people, to be taken 
on the first Monday in June, 1855. 

The same question may be asked with reference to the first 
clause of the thirty-sixth section: "All laws and parts of laws 
inconsistent with this act, shall be repealed when this act goes 
into operation^ 

The laws inconsistant with that act, were the laws providing 
for the granting of licenses, and providing punishment for sell- 
ing without license. 

The second clause of the same section, provides that " al\ 
prosecutions which shall have been commenced at the time this 
act goes into operation, shall be carried on to final judgment 
and execution, as if this act had not been passed." 

This clause would be absurd and inoperative if the last clause 
of the section repealed the license system ; for by such repeal 
all right of prosecution would have been taken away ; there 
would no longer have been a law in existence to sustain such 
prosecutions. If the law creating the offence is repealed, no 
prosecution can be commenced, carried on, or punishment inflic- 
ted therefor. Eaton -y. Graham, 11 111. 619. 

To give consistency and effect to the several parts of these 
two sections, the last clause of the thirty-sixth section (not- 
withstanding the words,) must be understood as referring to the 
time when, and condition upon which, the act was to go into 
operation. And by the rule for construing statutes, provided 
by the 90th chapter of the Revised Statutes, the thirty-ninth 
section would prevail over the provision of the thirty-sixth sec- 
tion, repugnant thereto. 

The 24th section of this chapter provides that, " If conflict- 
ing provisions be found in different sections of the same chap- 
ter, the provisions of the section which is last in numerical order 
shall prevail, unless such construction be inconsistent with the 
meaning of such chapter ;" and the 36th section of the chapter 
makes this rule of construction general. 

And the same rule seems to have been recognized at common 


Zarresseller v. TlieJ'eople. 

law. " If the latter part of a statute be repugnant to the former 
part thereof, it shall stand, and so far as it is repugnant, be 
a repeal of the former part ; because it was last agreed to by 
the makers of the statute." Dwarris on Statutes, 675. 

But, aside from the reasons already given we could not hold 
that the proviso of the thirty-sixth section repealed the license 
system and the penalties provided for its violation. The grand 
object in construing statutes is to ascertain the will of the legis- 
lature ; and to accomplish this, courts not only will look to the 
provisions and language of the whole act, but to the law as it 
was at the time of the passage of such act, to the cause and 
motive of the act, and the mischief to be remedied or avoided 

This act professes to be " for the suppression of intemper- 
ance," and its theory is, the prohibition of the manufacture and 
sale of intoxicating liquors, except for limited and specified pur- 
poses ; and its mode of legislation is, a reference of the act to 
the people, at the polls, for their adoption or rejection. 

The law, as it stood at the time of the passage of the act, 
regulated, and in a degree restrained, the retail of such liquors. 
One of its objects, as well as its effect was to lessen the mischief 
sought to be suppressed by the act under consideration. 

Can it be supposed, then, that at the date of this act, and 
when its final adoption was wholly hypothetical, the legislature 
intended to remove all restraint upon the free sale and use of 
such liquors, for any and every purpose, and thereby remove all 
barriers to intemperance ? Or, can it be supposed that the legis- 
lature intended to open wide the flood-gates of evil, and hold 
this condition in terrorum over the people to influence their vote 
at the polls, upon the adoption of this act as the law of the land? 

Such suppositions are not compatible with the integrity of the 
law-making power, and we are not disposed to entertain them. 

The next question is, does the indictment describe the offence 
with sufiicient certainty? A majority of the court hold the in- 
dictment sufficient in this respect, under our statute, and they 
are not without precedent in this conclusion. Commonwealth 
?}. Odlin, 23 Pick. 275.(a) 

I am unable, however, to concur with the majority of the court 
upon this point. 

The indictment concludes," against the peace and dignity of 
the people of the State of Illinois.', The 25th section of the 
5th article of the constitution provides, that all prosecutions 
shall be carried on "in the name and by the authority of the 
people of the State of IlLnois ;" and concludes, " against the 
peace and dignity of the same." 

We do not think it necessaiy to comply literally with this provi- 

(a) Rice m. People. SBDl. R. 435. 


Torrey v. The People. 

sion. The conclusion is the same in substance as required by 
the constitution, and within the spirit and meaning of the requi- 

The issue was tried by the court, by agreement of the parties 
in open court, and this is also assigned for error. We do not 
doubt the right of the defendant, in cases of misdemeanors, to 
waive a jmy and put himself upon the court for trial. He may 
waive his right in this respect, and, having done so, cannot as- 
sign for error that the court tried the issue. The people -». 
Scates, 3 Scam. 351. 

Judgment affirmed. 

William Gleisw and Hiram Torrey, Plaintiffs in Error, 
-y. The People, Defendant in Error. 


In aprosecutiot under tbe act to prevent the imrcigration of free negroes into 
this State, it is erroneous to instruct the jury to disregard tlae statements of 
the negro, if sucli were contradictory of his acts, as to his intention to be a 
resident ; both should be considered, giving such weight to eacli as they might 
deserve. Tlioaflidavit for an arrest under this statute, should aver that the ne- 
gro has come into the State within the time prohibited ; and he has a right to 
demand the nature and cause of the accusation against him, and if this does 
not show an oflence against the law he should be discharged. 

This cause was heard before Baugh, Judge, at April term, 
1855, of the Marion Circuit Court. 

The facts are stated in the opinion of the court. 

HouTS and HJyyiiLTON, and R. S. Nelson, for Plaintiffs in 

J. S. Robinson, District Attorney, for The People. 

Skinner, J. William Glenn, a negro, on the 31st day of Jan- 
uary, 1855, was arrested under the third section of an act en- 
titled, " an act to prevent the immigration of free negroes into 
this State," approved February 12, 1853. 

He was tried before a justice of the peace of Marion county, 
found guilty and fined $50. 

Glenn appealed to the Circuit Court, and H. Torrey became 
his security in the appeal bond. In the Circuit Court, Glenn 
appeared and moved to dismiss the prosecution ; the motion 
was overruled, a trial by jury was had, a verdict of guilty re- 


Torrey v. The People. 

turned, and judgment rendered against Glenn and Torrej, his 
security, for $50. 

From this judgment Torrey appealed to this court, and assigns 
for error the refusal of the court to dismiss the prosecution, and 
the giving of instructions on the part of the plaintiffs. The instruc- 
tions complained of, areas follows: "That if the acts and con- 
duct of the negro were contradictory to his statements as to his 
intention of remaining here, then the jury should disregard his 
statements made to witnesses, and find the defendant guilty, if 
the other material allegations are proved." 

" That it is not necessary for the prosecution to prove how 
long the negro intended to remain here, if he did remain here 
more than ten days, and it was evident from his acts and con- 
duct that he intend -d to remain longer, then the jury should find 
him guilty." 

The court erred in giving these instructions. The affidavit, 
which is the foundation of this proceeding, charges : " that 
William Glenn, a negro, is now remaining in the town of Salem, 
where he has been so residing more than ten days, with the evi- 
dent intention of residing in this State." 

The first instruction directs the jury to disregard the state- 
ments of the negro, if his statements and acts w^ere contradic- 
tory. These statements and acts were detailed by the witnesses 
in connection, as evidence of his intention to reside in this 
State, and with his acts, were the res gestse of the inquiry. They 
should have been taken and considered together by the jury in 
determining upon the question, attaching such weight to any of 
them as to the jury, upon consideration of the whole evidence, 
they seemed to deserve. 

The last clause of the instruction is equally objectionable. 
The " material allegations " must be understood as referring to 
the charge in the affidavit. This charge amounts to no offence 
in law. The offence consists in " coming into this State and 
remaining ten days, with the evident intention of residing in the 
same." The affidavit does not allege that the negro, came into 
this State, and for aught that appears, he may have resided in 
this State at the time of the passage of the act of 1853, or have 
been bora in this State. 

The second instruction is based upon the supposition that the 
offence consists in remaining in the State more than ten days, 
with the intention of remaining longer, and is erroneous for the 
reason before stated. 

The Circuit Court should have dismissed the prosecution for 
want of an affidavit charging an offence under the law. In this, 
as in all other criminal prosecutions, the negro had a right " to 
demand the nature and cause of the accusation against him," 

NOVEMBER TERM, 1855. 107 

Kirkham et al. v. Justice et al. 

and, i£ the accusation did not amount to an offence against the 
public law, and no sufficient charge was made by amendment, he 
was entitled to be discharged fi'om the prosecution. 

Judgment reversed. 

Samuel Kirkham et al., Plaintiffs in Error, 7). Susan 
Justice et al., Defendants in Error. 


Parties to suits in chancery should be described by their proper names, if known ; 
if their names are unknown, they must be made parties in the manner pre- 
scribed by the forty-flrst^section of the twenty-first ehai^ter of the Revised 

Th e opinion of the court furnishes a statement of all the 
facts necessary to a full understanding of it, 

The decree in the case was entered by Denning, Judge, at 
June term, 1850, of the Gallatin Circuit Court. 

W. Harrow, for Plaintiffs in Error. 

Baugh and Olney, for Defendants in Error. 

Skinner, J. The bill m this case shows that the complainant 
has the legal and equitable title to the lands in dispute, pro- 
vided the sheriff's deed to him, under the execution in favor of 
William and Redman Lasswell, and against Samuel Kirkham, 
was made to the person legally entitled thereto. The proba- 
bility is that the sheriff's sale appears, from the record, to have 
been made to the plaintiff in the execution, and that no sufficient 
assignment was made to authorize the execution of the deed to 
the complainant ; and that this bill was filed to establish the 
complainant's title under the judgment, execution and sheriff's 

The bin is, however, too uncertain in its allegations to entitle 
the complainant to relief. 

Certificates of purchase, under executions at law, were first 
made assignable Febuary 19th, 1841, and the manner of assign- 
ment is provided for by the act authorizing such assignment- 
Purple's Statutes, 341. 

The sheriff's sale alleged in complainant's bill was made 
before the passage of this act, though the sheriff 's deed to com- 
plainant was executed long after. If the parties in interes t 


Kirkham et al. v. Justice et al. 

attempted an assignment or transfer of the certificate of pur- 
chase, for a valuable consideration, to complainant, and the 
parties intended thereby that all rights under the sheriff 's sale 
should pass to complainant, and that the sheriff 's deed should 
be executed to the complainant, equity, upon a proper showing 
by allegations and proofs, would afford adequate relief. 

The decree of the Circuit Court is against all of the defen- 
ants, and requires them to execute a deed of the lands in con- 
troversy to complainant. 

Summons issued against the "heirs of Redman Lasswell," 
and the " heirs of John M. Ham," and they were made parties 
defendants by that style. The summons was returned " not 
found" as to these parties, and an affidavit was filed by com- 
plainant setting forth "that hedoes not know the residence of 
the heirs of Redman Lasswell, unless it be in Indiana, nor that 
of the heirs of John M. Ham." 

Publication was then made, as in case of non-resident defend- 
ants in chancery, against these defendants, by the styles given 
them in complainant's affidavit. Parties to suits in chancery 
should be described by their proper names, or the names by 
which they are known and called, if their names are known; 
and if their names are unknown, they can only be made parties 
defendants, in pursuance of the 4lst section of chapter 21 of 
the Revised Statutes. 

This section provides that "In all suits in chancery, and suits 
to obtain the title to lands, in any of the courts of this State, 
if there be persons interested in the same, whose names are 
unknown, it shall be lawful to make such persons parties to 
such suits or proceedings, by the name and description of per- 
sons unknown, or unknown heirs or devises of any deceased 
person who may have been interested in the subject matter of 
the suit, previous to his or her death ; but in all such cases an 
affidavit shall be filed by the party desiring to make any 
unknown person a party, stating that the names of such persons 
are unknown." And then provides that process may issue and 
notice be given by the name and description given as aforesaid. 

This statute was not complied with, and the court acquired 
no jurisdiction of the persons thus made parties. 

The decree is reversed and ^the cause remanded, with leave 
to complainant to amend his bill and make proper parties. 

.Decree reversed 

NOYEMBER TERM, 1855. 109 

Lucas V. Driver. 

Hajrvey B. Lucas, Plaintiff in Error, v. William B. Driver, 
Defendant in Error. 


Where an agreement was made between A. and B., that the latter was to haul 
railroad ties, with two teams, for six months, and A. refused to furnish ties 
for a part of that time, so that B. could not work his teams : Held, that B. was 
entitled to recover damages, and that a receipt at the end of the first month , in 
full of all demands to date, did not preclude B. from recovering damages for 
the residue of the time, the contract still remaining between the parties. 

Driver sued Lucas in the Circuit Coui't of Jefferson county, 
averring specially the agreement, as stated in the opinion of the 
court ; the declaration also contained the common counts in 
assumpsit. The defendant pleaded the general issue and a plea 
of set-of to this declaration. There was a trial by jury, verdict 
and judgment for Driver, before Marshall, Judge, at May term, 
1854, of the Jefferson Circuit Court. Lucas sued out this writ 
of error. 

Nelson Johnson, for Plaintiff in Error. 

R. F. WiNGATE, for Defendant in Error. 

Caton, J. In February, 1854, an agreement was made be- 
tween Lucas and Driver, by which the latter was to haul rail- 
road ties, with two teams, for the former, for six months, at 
seven cents per tie ; and Lucas agreed to furnish Driver all 
the ties he could haul with the two teams during the six months, 
the service to commence as soon as Lucas' saw-mill got in 
operation, payments to be made monthly. The mill was started 
on the 18th of May following, when Driver commenced hauling 
with two teams, but the mill could not cut enough to keep 
Driver's teams going, and also two of Lucas' own teams, which 
were also engaged in hauling ties, in consequence of which 
Lucas did not furnish Driver with as many ties as he could haul. 
On the 18th of June, one month after Driver commenced work, 
a settlement was had between the parties, and a receipt given of 
the following purport : 

" Received from H. B. Lucas, sixty-four dollars and eight cents, in full of all 
demands up to date. 



After this settlement, Driver continued work, and hauled six 


Lucas V. Driver. 

hundred and sixty- three ties, when Lucas refused to furnish him 
any more and discharged him. The evidence also shows that 
Driver had built a shanty at the mill for his accommodation 
during the job, which cost him fifteen or twenty dollars. The 
teams could average about fifty ties per day each. 

Upon this evidence the jury returned a verdict for the plain- 
tiff below, for $86.41, which the court refused to set aside, but 
rendered judgment for that amount. This decision is assigned 
for error. The price for the ties hauled, subsequent to the set- 
tlement, was |46.41, so that the jury allowed Driver $40 for his 
damages, for the violation of the contract by Lucas, in not fur- 
nishing him ties as he had agreed. 

It is now insisted, on the part of Lucas, that the receipt given 
upon the first settlement is evidence of a settlement and satis- 
faction for those damages for the breach of the agreement. We 
cannot concur in this view of the case. To give the receipt the 
most liberal construction for Lucas of which it is susceptible, 
and it cannot be said^that any damages for the breach of the con- 
tract were then settled for, except what had accrued before that 
settlement. Nothing more could have been paid for at that time, 
unless an agreement was then made to terminate the contract. 
There can be no pretence that this was done, for the subsequent 
transactions between the parties show very clearly that both 
regarded it as still subsisting and executory for the six months 
originally stipulated. Lucas continued to furnish ties, and Driver 
continued to haul all he could get. It is true that frequently, 
previous to the final dismissal of Driver, both Lucas himself and 
his agent, Hope, refused to furnish ties, when demanded, but 
never did they put the refusal upon the ground that the contract 
was terminated, and hence Lucas was not bound to furnish any 
more, but always assigned as a reason, that the mill could not 
cut sufiicient ties to keep both Lucas' and Driver's teams going. 
By the agreement, as proved, Lucas was bound to furnish Driver 
with ties to keep both his teams at work not only for the month 
at the end of which the settlement was made, but also for the 
succeeding five months. This he refused to do, and thereby 
violated his contract and rendered himself liable to Driver in 
damages. Those damages the jury assessed at $40, which, we 
think, judging from the evidence, was in no way excessive. 

The court properly overruled the motion for a new trial, and 
its judgment must be affirmed. 

Judgment affirmed. 


"Weinz v. Dopier. 

Jacob Weestz, Plaintiff in Error, v. Jacob Dopler, Defend- 
ant in Error. 


To authorize a justice of tlie peace to enter a judgment upon an award, it must 
be made in a suit pending before liim, upon a reference by the parties. 

Jud,^meut cannot be entered in coiirts of record upon awards, unless the sub- 
mission to arbitrators is made in pursuance of the statute. 

An award, made upon a submission which is, not in pursuance of the statute, 
must be enforced by common law remedies. 

This case is stated in the opinion of the court. This cause 
was heard before Baugh, Judge, at April term, 1855, of the 
Wayne Circuit Court. 

C. A. Beecher, for Plaintiff in Error. 

S. S. Marshall, for Defendant in Error. 

Skinner, J. Jacob Weinz and Dopier, on the 10th day 
of January, 1855, executed a writing under seal, whereby they 
mutually bound themselves to each other, that certain matters of 
difference between them should be determined by certain persons 
therein named, and that they would perform such award as said 
persons should make in writing, ready to be delivered on said 
10th day of January, 1855. The obligation also provided " that 
judgment should be rendered on such award, in any court having 
jurisdiction of the same." 

On the 11th day of January, 1855, the arbitrators made their 
award in writing, and awarded that Weinz pay to Dopier 
^71.83, and costs of arbitration. 

On the 13th day of January, 1855, Calvin McCracken, a jus- 
tice of the peace of Wayne county, rendered judgment on this 
award, in favor of Dopier and against Weinx, for the sum in the 
award mentioned. From this judgment Weinz appealed to the 
Circuit Court. 

In the Circuit Court Weinz moved to disniss the suit, for 
want of jurisdiction in the justice, which motion was overruled, 
and judgment was rendered on the award against Weinz. 

The decisions of the Circuit Court in overruling Weinz's mo- 
tion to dismiss the suit, and in rendering judgment on the award 
against Weinz, are assigned for error. 

The record of the proceeding before the justice wholly fails 
to show service of summons on Weinz, or appearance. The 
judgment was evidently rendered upon the award, without sum- 
mons or appearance, upon the supposition that the submission 


Morris t. Thomas. 

authorized the rendition of judgment thereon. To authorize a 
justice of the peace to render judgment upon an award, the 
award must be made upon a reference by the parties to a suit 
pending before such justice. R. S. 321, Sec. 43. 

Chapter 7 of the Revised Statutes authorizes judgments to be 
entered upon awards in courts of record, and does not apply to 
justices of the peace ; nor can judgment be entered in courts 
of record upon awards, unless the submission under which the 
arbitrators acted is made in pursuance of the statute. In all 
cases of submission to arbitrators, not in pursuance of the stat- 
ute, the parties are left to their common law remedies. Low et 
al. t). Nolte, 15 111. 368. (a) 

In this case no suit was pending between the parties, before 
the justice ; the award could have no other effect than at com- 
mon law; and gave the justice no jurisdiction to render judg- 
ment against Weinz without service of summons or appearance. 
Evans v. Pierce et al., 2 Scam. 468. 

We are not called upon to decide whether the award is void, 
it not having been made within the time provided by the sub- 

The powers of the arbitrators were derived from the submis- 
sion, and beyond its provisions they could not go, without 
authority from the parties. 

The Circuit Court should have dismissed the suit and reversed 
the judgment. 

Judgment reversed. 

Isaac N. Morris, Appellant, v. William Thomas, as 
Representative of the Bank of Illinois, &c., Ap- 


In chancery proceedings a trustee may state facts explanatory of a transaction, 
and interpose denials and objections, with a view to negative his own transac- 
tions as charged, and to require full proofs of complainant. 

Althougli a remedy at law may exist, yet if a complaint is one of equitable 
jurisdiction, chancery will sometimes take cognizance of it, where its aid is 
more effectual. 

In matters of trust funds, &c., courts of law might enforce bargains, which 
equity would set aside, as being in violation of the trust. 

Equity will not enforce au agreement made by a trustee in gross violation of 
his trust to take land in satisfaction of a judgment. 

The power given the trustee, to close up the afl'airs of the Bank of Illinois by 

making such settlements and compromises as he might deem most advauta- 

■ geous, is subject to the revision and control of a court of equity ; whic will 

inquire, not only into the good faith, but the propriety of his act tevoking 

or confirming them at its discretion. 

(a) Hamilton as. Hamilton, 27 111. B. 160 ; Rankin vs. Rankin, 36 Id. 298. 
(6) Thomas v». Sloo, 15 lU. B. 71. 

NOVEMBER TERM, 1855. 113 

Morris v. Thomas. 

This was a bill in chancery exhibited by the appellant against 
said Thomas as representative of the Bank of Illinois 

The bill shows that the Bank of Illinois obtained a judgment 
at law against said Morris and others as his sureties, in the 
Gallatin Circuit Court at October term, 1843, upon which an 
execution was issued and levied upon certain lands of said 
Morris, which were not sold, and the execution returned ; that 
afterwards a vendi. exponas issued directing the sale of the lands, 
which were situate in Adams county ; that one Caldwell was 
appointed receiver of the Bank; that the act of 15th Feb., 
1851, constituted Brown, Gillespie, and Cald-well, or whichever 
should give bond, the successor or succassors of the assignees of 
the Bank ; that Caldwell alone qualified ; that Caldwell having 
authority so to do, appointed Onias C. Skinner his agent and 
attorney to settle and compromise said debt with said Morris ; 
that said Morris did settle and pay said judgment to said Skin- 
ner, by conveying to said Bank the south-west quarter Sec. 14, 
T. 6 S., R. 6 west, situate in Pike county, and the payment in 
cash to said Skinner of $59.75, which is indorsed and receipted 
on said venditioiii exjjonas ; that aftenvards, Caldwell having 
died, said Thomas was appointed Trustee of the Bank by the 
Circuit Court of United States, who sued out a further venditioni 
exponas, directing the sheriff of Adams county to sell the lands 
levied upon under the original execution ; and that said Thomas 
knew that the judgment was satisfied. 

The bill prays an injunction against said last 'Venditioni expo- 
nas, which was granted. 

The answer and amended answer admit the allegations of the 
bill, except that they deny that Caldwell had authority to 
receive the land in payment of the debt, alleging that the debt 
was secure, and that the land taken in compromise for it was of 
no value. 

Depositions were taken going to show that the land was of 
small value, but failing to show that Morris had made any 
representations to Mr. Skinner, the agent of Caldwell, as to the 
value or character of the land taken in payment. 

Thomas, as trustee, filed his answer ; denying the authority 
of Caldwell to authorize the compromise ; denying that he gave 
authority to make such compromise as was charged in the bill ; 
denying that he gave any authority after his appointment as 
trustee ; denying the authority of the legislature to authorize 
Caldwell to make compromise in such case ; denying that this 
was a doubtful debt, or that there was any controversy for com- 
promise ; denying that the compromise was made with knowl- 
edge on the part of the attorney of the value of the land con- 
veyed ; denying that trust fund was bound by such compro- 

ILL. REP. — xvn. — 7 


Morris «. Thomas. 

mise, and denies ratification by Caldwell ; averring that the 
land conveyed was of no value ; denying that the conveyance 
of the land to the bank was, or could be, in any wise binding, 
and insisting that the complainant has a full and complete 
remedy at law, and therefore that he has no right to injunction. 

The injunction was dissolved and the bill dismissed by Baugh, 
Judge, at December term, 1854, of the Gallatin Circuit Court. 

The complainant appealed. 

W. H. Underwood, and N. L. Freeman, for Appellant. 
W. Thomas, Fro se. 

ScATES, C. J. The ofFer to except to the amended answer and 
the depositions came too late at the trial term, when the answer to 
the depositions had been on file near a year, and especially so, 
as the exceptions tendered are of a technical character, and the 
matters excepted to in nowise important in the determination of 
the equities between the parties. Of like character we regard 
the exceptions to the former answer, which were disallowed by the 
court. The defendant may be allowed to state and insist upon 
principles of law, which his duty as the trustee of a fund requires 
him to assert for its protection ; and for the purpose of showing 
that he does not waive any right of the cestui que trust. So he 
may state facts explanatory of the transaction, and interpose de- 
nials and objections, with a view to require full proofs from com- 
plainant, and negative his own acquiesence in the transaction 
as charged. The defendant is acting as a trustee for others, and 
is called upon to answer to transactions of a former trustee and 
his agents; in which he was not personally concerned, and of 
which he had no personal knowledge. From one thus situated, 
we cannot exact such disclosures as would be called for from the 
party to the transaction. The present defendant does not repre- 
sent the former trustee, but the trust. He has nothing to do with 
the obligation of his agreements, any further than they bind and 
are enf orcible against the trust fund, and those interested in it ; 
and we therefore recognize it, not only as his right but his duty 
to protect that interest against all improvident acts which sacri- 
fice or waste it. 

We do not think the defence set up in the answer, and insisted 
on here, that the party having a remedy at law, therefore, has 
none in equity, sustainable in this case. 

The general proposition is true, and has been repeatedly recog- 
nized by this court ; and has been applied and enforced in a 
variety of cases. Beard ?). Foreman et al,, Breese 303; Rob- 
inson -y. Chesseldine, 4 Scam. R. 832 ; State Bank -y. Stanton 


Morris i\ Thomas. 

-2 Gil. R. 352 ; Woodward et al. v. Seely et al., 11 111. R. 162 ; 
Ross V. Buchanan et al., 13 111. R. 58. 

But ii: the complaint is one of equitable jurisdiction concur- 
rent with a court of law, the court will exercise a sound discre- 
tion in assuming it. Mason v. Piggott, 11 111. R. 89 ; Truett 
V. Wainwright et al. , 4 Gil. R. 418 ; and will only refuse when 
the party not only has a remedy at law, but in which it is clear, 
complete, and effectual, as in equity. Frazier v. Miller, 16 
111. 50. 

The common law courts have the power to correct and prevent 
abuse of their process — to hear proofs of payment of their judg- 
ments — order satisfaction to be entered — and order a return of 
and quash, executions issued to collect such satisfied judgments. 
Such motions have been repeatedly entertained, and the power 
recognized in other cases. Beard v. Foreman et al., Breese R. 
303 ; Russell v. Hugunin et al., 1 Scam. R. 563 ; Robinson v. 
Chesseldine, 4 Scam. R. 332 ; McHenry v. Watkins, 12 111. R. 
233 ; Day et al. v. Graham, 1 Gil. R.'435. 

Yet notwithstanding this power in courts of law to correct 
abuses, prevent oppression, and afford redress in many, we might 
say most, cases, circumstances may exist Avhich require the party, 
as in the last case cited, to seek his redress in a court of equity ; 
and in others it is more effectual, and therefore allowed. Truett 
-». Wainwright et al., 4 Gil. 418 ; Frazier v. Miller, 16 III. R. 
50 ; Crawford y. Thurmond et al.. 3 Leigh R. 87 ; Chiisticy. 
Bogardus, 1 Barb. Ch. R. 170. (a) 

The case before us is one peculiarly fit for a court of equity, 
The character of the fund, a trust, gives jurisdiction in questions 
arising out of its management and disposition. A court of law 
might inquire into and enforce bargains made in relation to it, 
while equity would set them aside as violations of the trust. 

Such we regard as the charactor of the transaction before us. 
The aid of the court is invoked to enforce and carry into effect, 
by injunction, an agreement to take land in satisfaction of the 
judgment, which appears to us, under the proofs in the record, 
as a sacrifice of the interest of the cestui que trusts and the 
trust fund, and a gross violation of the trust. 

We have already given our opinion in Thomas, trustee, x. 
Sloo et al., 15 111. R. 'o'o, that such an agreement is a violation 
of the trust, and not authorized or sanctioned by the laws under 
which the assignees and trustee, are acting. That case came 
before the court with higher claims to considerotion than this, 
as one' assignee had agreed to and made the arrangement and 
another had formally sactioned it afterwards. Here the 
arrangement has not been submitted to the approval of the 
trustee who authorized a settlement of the judgment with land, 

{a) Cooper v% . Mc'Lure, 16 lU. R. 443. 


Morris v. Thomas. 

and has been expressly rejected by his successor, the present 

The former trustee, and those thus dealing with him, seem to 
have proceeded upon the g-round that the power to " make such 
compromises and settlements as they may deem most advanta- 
geous to the said bank, " conferred by Section 15, of act of 
1845, p. 248, and repeated in the acts of 1851, p. 121, Sec. 4, 
" to make such compromises as they may deem proper of the 
debts due the said bank, having a due leiard to the rights of 
the creditors of said bank, " would enable and authorize him to 
make any settlement he might think proper without a power of 
revision and control, and that all such arrangements can be 
enforced in law or equity. 

This is not the doctrine of courts of equity, more especially 
in those cases which need and call upon them for aid in their 
enforcement. The legislature never intended, by these provis- 
ions, to overturn all the well settled principles of equity in 
relation to trustees, and trust estates, and give an unbridled 
uncontrolled power, without revision. The power was con- 
ferred for the benefit of the trust and not of the debtors to it ; 
it was given to secure and collect, not to waste, or diminish, or 
delay its collection. The power to compromise and settle debts 
was intended to enable the trustee to secure and collect in cases 
of doubt, controversy, insolvency, and such like, and not a 
power to forgive the debt on being, paid, or of purchasing 
property at exorbitant prices in the name of payment. When 
such compromises and settlements are made, the trustee and 
parties to them must stand prepared to prove and show, when 
questioned, not simply that they were made in good faith, but 
that in good faith and truth they were the best arrangement for 
the benefit of the trust fund that could have been effected under 
the circumstances, or at least a fair and reasonable one. So I 
understand the meaning of these provisions of the statute. 
While I so understand them, I can never sanction such an 
arrangement as this, even when made with the most solemn 
sanction of the trustee, unless it be first approved by the court 
or the creditors and those interested in the fund. The trustee 
is not acting for himself but for the creditors and other owners 
of the fund ; he must net for their interest and benefit, and be 
able to make his acts appear to be fair, and calculated to pro- 
mote that interest. Where judgment has been rendered for the 
debt and property amply sufficient to pay it has been levied 
upon, and in cases where the debt is amply secured by mortgage 
or otherwise, there is nc room for compromise in the sense of 
abandoning part of the claim or purchasing in payment. Under 
8uch circumstances the sinple duty of the trustee is to enforce 

NOVEMBER TERM, 1855. 117 

Ridgway v. Grant 

%e collection and payment of the debt, without resorting to or 
hazarding speculative bargains. I£ the trustee were authorized 
or justified in taking real estate in payment, under circums- 
stances like these in the record, still we should unhesitatingly 
disapprove any bargain he might make upon terms so inade- 
quate. The land is proven to be of very little value and unsale- 
able. The duty of the trustee, and the interest of the credtiors 
of this fund, alike demanded a sale of the lands levied upon if 
the debt were not paid. It is not a case in which he was 
authorized to purchase land in payment, unless compelled to do 
so to secure the debt by bidding under the execution. We are 
therefore of opinion that the bill was properly dismissed, with 
cost and damages. Neither the deed nor money has been 
accepted by the trustee, being offered in execution of the 
arrangement. The money would be good payment to that 
extent, and if the parts of the transaction are separated, the 
complainant will find ample redress by a motion to the court of 
law to restrain the collection again of that amount if attempted. 
There is no ground for a partial decree or injunction on part 

Decree is not for as much damage as the statute allows. 

Decree affirmed. 

Edwards H. Ridgway, Plaintiff in Error, v. Angus M. 
Grant, Defendant in Error. 


After apartnership is settled and a balance is struck, if a surplus remains with one 
co-partner, he may be liable to the other in an action lor money had and 
received. Until this is done, one co-partner must seek his remedy against the 
other, by action of account, or by bill in chancery. 

The judgment, complained of in this case, was rendered by 
Baugh, Judge, at May term, 1855, of the Jefferson Circuit 
Court. The facts of the case are stated in the opinion of the 

R. F. Wingate, for Plaintiff in EiTor. 

S. S. Marshall and R. S. Nelson, for Defendant in Error. 

Caton, J. This was an action of covenant, brought by one 
partner against the other, upon the co-partnership articles, for 
the recovery of one thousand dollars, the amount of capital 
stock paid into the concern by the plaintiff. The substance of 


Ridgway v. Grant. 

the articles of co-partnership is, that the plaintiff should put 
into the concern one thousand dollars in cash, and that the 
defendant should put in his stock of goods at one thousand dol- 
lars ; that the business should be conducted in the name of A . 
M. Grant, who should be the active and managing partner, and 
that the name of Ridgway should not be known in the concern ; 
that the co-partnership should continue for one year. The agree- 
ment concludes as follows: " The said A. M. Grant is to attend 
exclusively to the establishment, and at the expiration of the 
partnership, each party shall draw from the establishment one 
thousand dollars, as the capital stock in trade, and one-half of 
the profits accruing therefrom. The parties each and severally 
bind themselves to continue the partnership for the term of one 
year, and that the books and accounts, &c. , shall be open to the 
inspection of either party, as long as the firm continues." The 
breach assigned is, that Grant, at the expiration of the part- 
nership, did not pay to Ridgway the one thousand dollars. To 
this declaration a demurrer was sustained, which is now assigned 
for error. 

We have no doubt that this demurrer Avas properly sustained. 
There is no covenant by either partner to pay the other the cap- 
ital stock paid in. At the most, the covenant is by both partners, 
to each individually, that each should be entitled, at the termi- 
nation of the partnership, to withdraw his capital put in and one- 
half of the profits realized, and this only upon the supposition 
that the concern should prove a profitable and not a losing ope- 
ration. The declaration does not aver that any profits were 
realized, or even that any of the capital remained. This action 
is an attempt to make Grant a guarantor to his co-partner that 
the concern should not at least be a losing one. From the terms of 
this contract. Grant had as much right to insist that Ridgway 
should guarantee to him the amount of the capital which he put 
into the business, as the latter has to maintain this suit. 

It is due to creditors that neither should withdraw his capital 
or profits until their debts are paid, and it is equally the right 
of each partner, that the assets of the concern should remain 
intact till all debts were paid and the balance struck. Even if 
the declaration showed that all debts had been paid, and a 
surplus exceeding the capital paid in remained, still this action 
could not be maintained. After a partnership is settled up, and 
a balance struck, with a surplus remaining in the hands of one 
partner, he may be liable to his co-partner for money had and 
received to his use. Till that is done, one partner must seek 
his remedy against the other, either by action of account or by 
bill in equity. (<z) 

The judgment of the Circuit Court must be affirmed. 

(a) Davenport vs. Gear, 2 Scam 498 & notes. Judgment affirmed. 

NOVEMBER TERM, 1855. 119 

Napper et al. v. Short. 

Maey Napper and others, Plaintiffs in Error, v. William 
H. Short, Executor, &c., Defendant in Error. 


Records from the Circuit Courts should be legibly written and the proceedings 
be stated in proper consecutive order. 

Circuit clerks assuming to discharge the duties of that office without proper quali- 
fications, will be held to the same accountability as if they were qualified, but 
knowingly neglected their duties. 

Heirs , who are made parties to a proceeding for the sale of the land of their ances- 
tor, although personal service of notice of tlieproceedingisnot required to be 
made upon them, may sue out a writ of error to review such proceeding , but 
they must sue out the writ in their^own names, or by their guardians or next 
friends, if they are still minors. 

The attorney should state in his precipe for a writ of error, the names in full of all 
the parties to the controversy, and their position in the record. 

Pleadings in the Supreme, as in other courts, should be properly entitled in the 

This case was brouglit to the Supreme Court by writ of error. 

At the presentterm, the defendant in error pleaded that more 

than five years had elapsed between the rendition of the decree 

complained of and the suing out of this writ of error, and that the 

right of the plaintiffs in error to maintain their writ did not 

accrue within five years next before the issuing thereof. To this 

plea the plaintiff in error replied : first, that Mary Herdman, 

alias Mary Kirby, wife of William Herdman, Sarah Kirby and 

Eliza Jane Kirby, were minors under the age of twenty- one 

years, and still are minors ; second, that Sarah Kirby and Eliza 

Kirby, in their own proper persons come and say, that at the 

time of the rendition of the decree in the Circuit Court, and at 

the time of the issuance of the writ of error, they were and still 

are minors ; third, that Mary Herdman,» formerly Mary Kirby, 

was, at the time of the rendition of the decree in the Circuit 

Court, and the issuing of the writ, z^femme covert ; and fourth, 

that said Mary Kirby intermarried with William Herdman, was, 

at the time of the rendition of the judgment in the Circuit Court 

and at the issuing of the writ of error, a minor, &c. None 

of these replications were entitled as of any cause, or any term, 

or of any com't. To the several replications a demurrer was 

filed. The writ of error was issued at the instance of parties 

described in it," Mary Napper and others, " and in a judgment 

between " William H. Short, executor of Lydia Kirby," and 

the said Mary Napper and others, without any oth^r description 

of parties. 

Nelson and Johnson, for Plaintiffs in Error. 

D. Baugh and R. Wing ate, for Defendant in Error. 


Napper et al. -y. Short. 

Oaton, J. In order to determine these demurrers, we have 
had to look through the record and the "whole proceedings, and 
we are constrained to say that they exhibit a looseness and irreg- 
ularity of practice, which is exceedingly dangerous to the rights 
of parties, and which cannot be tolerated in this court. In the 
first place, the record from the Circuit Court is so made up that 
it is tedious and difficult to understand what it really does con- 
tain. Records, to be sent here, should be written in a fair and 
legible hand, and the record of the case should be inserted in 
proper and consecutive order. There has been much and just 
complaint at the bar, during this term, of the imperfect, slovenly 
and improper manner in which records have been sent up here, 
and it will be the duty of this court to take the necessary meas- 
ures to remedy the evil complained of. If clerks will undertake 
to discharge the duties of an office for which they are not quali- 
fied, they must beheld to the same accountability as if they were 
qualified, but knowingly neglected their duties. 

The next step in the case is equally defective, and that is the 
writ of error. The record, so far as we can understand it, was 
a proceeding by an executor, to sell real estate left by a testator, 
and was a proceeding in rem., in which the actual parties in 
interest, that is the heirs of the testator, were not, and were 
not by the statute required to be, served personally. The sum- 
mons below was to Mary Napper and Jonathan Ogden, for Mary, 
Sarah, and Elizabeth Jane Kirby, and was only served on Ogden. 
A decree was entered for the sale of the estate. It was com- 
petent for the heirs to sue out a writ of error to reverse that 
decree, because the statute has made it binding upon them, 
although the notice is only served on their guardian. If the 
heirs wish to reverse thtl decree, they must bring a writ of error 
in their own names, and if they are still infants, they must do 
that by their next friend or guardian, the same as they would 
commence any other action. Particularly in a case of this kind, 
where the record does not disclose who the real plaintiffs in error 
are, the party or attorney, prosecuting the writ, should file a 
precipe with the clerk of this court, describing, by a full state- 
ment of the names of each of the parties to the judgment sought 
to be reversed, and in whose favor the judgment was rendered, 
and then directing the clerk of this court to issue the writ in 
favor of the plaintiffs in error ; giving each of their names in 
full, and against the defendants in error, giving the name of each 
in full ; and, indeed, such would be the proper practice in all 
cases. Then the clerk could issue his writ without danger of 
mistake, and insert the names of all the parties, in full, in the 
writ and in all subsequent orders in the case, which is indispens- 
able to the regularity of the proceedings in this or any other 

NOVEMBER TERM, 1855. 121 

K'apper et al. i;. Short. 

court. Then, too, tlie attorney, who ought to do so, would tak© 
the responsibility of the regularity of the proceeding. 

Now let us see what is the condition of this record, and apply 
it to the demui'rers now under consideration. This writ of error 
was sued out in the name of " Mary Napper and others." To 
this writ of error the defendant filed simply a plea, that more 
than five years had elapsed since the rendition of the decree, 
when the writ issued. To this plea we find filed, first, a repli- 
cation entitled " Mary Napper and al. v. William A. Sharp, " and 
averring that, at the time the decree was rendered, and until the 
suing out of the WTit of error, " The said Mary Herdman, 
alias Mary Kirby, wife of the said William Herdman, Sarah 
Kirby and Eliza Jane Kirby were minors," &c-, and signed by 
the attorney. We then find upon another piece of paper, and 
without being entitled in any cause, what is designed for another 
replication by " the said plaintiffs, Sarah Kirby and Eliza J. 
Kirby, in their own proper persons," and averring their infancy 
as in the former replication. Then follows another replication, 
without any title, by " the said plaintiffs, Mary Herdman and 
William Herdman," averring the coverture of Mary Herdman, 
formerly Mary Kirby. On the same piece of paper, and still 
without a title, is another replication by " the said defendant, 
Mary Herdman, formerly Kirby, and William Herdman, her 
husband," averring the minority of Mary Herdman, at the time 
of the rendition of the decree and the suing out of the writ. 
I may here remark that these pleadings are too much interlined 
and too illegible to pass unnoticed, and that it is expected by 
this court that papers for its files should be at least plainly writ- 
ten, and not interlined or blotted to any considerable extent. 

The statement of the record, which has been given, shows that 
the replications filed have no application, whatever, to the cause 
in this court. They are by persons in no way parties to this 
writ of error, and for that reason, even, the demurrer was not 
properly filed to them, but they must be stricken from the files 
as totally inapplicable to the case. 







The Chicago, Burlington and Quincy Railroad Company 
V. Isaac G-. Wilson. 


The grant to a railroad company, to construct a road, with such appendages as 
may be deemed neessary for the convenient use of the same, will authorize 
them to acquire land by condemnation for work-shops, &c. — these being neces- 
sary appendages. 

This power is not exhausted by an apparent completion ofthe road, if an increase 
of busines shall demand other appendages, or more room for tracks. 

On an application to a judge for the appointment of commissioners to condemn 
lands, he is compelled to act, if such a case is made as the statute directs. He 
is rather a ministerial than a judicial otficer.(a) 

This application for a mandamus was founded upon a petition 
to the Honorable I. G. Wilson, Judge of the Thirteenth Judi- 
cial Circuit, asking the appointment of commissioners to fix the 
compensation to be made for appropriating certain lands and lots 
to the use of the Chicago, Burlington and Quincy Railroad 
Company, for constructing and maintaining thereon" turn-outs, 
depots, engine houses, shops and turn-tables." 

The Judge denied the petition, for the following reasons : Be- 
cause the charter of the company did not grant the power to 
condemn lands for shops ; because, if the power ever existed, it 
has been exhausted, the road having been built and running reg- 
ularly, and the company having located its line, stations, depots, 
turn-outs, &c., two or three years since ; because the company 
does not show, by proof, that said lands are necessary or required 
for the purposes stated ; and because the company does not prove, 

(tt) GiUenwat«r fs. M. A. R. R. Co, 13 ni. R. 2 ; I. C. R. R. Co. vs. Rucker, 14 m. 
R. 353. 


The Chicago, Burlington and Quincy Railroad Co. v. Isaac G. Wilson. 

nor in any way show, that it has not been able to acquire the lands 
by purchase. 

Judge Wilson agreed, if the court should be of opinion that 
commissioners should be appointed, to waive the necessity of an 
alternative mandamus. 

This company was incorporated in 1849, under the name of 
the Aurora Branch Railroad Company. 

The other facts necessary to a correct understanding of the 
case will be found stated in the opinion of the court. 

J. F. Joy, for the application. 

A. Lincoln and G. Goodrich, Contra. 

Caton, J. By its charter the railroad company, which is the 
relator here, was authorized to construct a railroad on the pre- 
scribed route, "with such appendages as may be deemed neces- 
sary for the convenient use of the same," and to acquire the right 
of way or title to land nesessary therefor. On the 26th of No- 
vember, 1855, the railroad company, under the law of the 22nd 
of June, 1852, filed its petition in the ofiice of the clerk of the 
Circuit Court of Kane county, for the purpose of procuring, by 
condemnation, the premises described therein, " for the purpose 
of constructing and maintaining thereon turn-outs, depots, engine 
houses, shops and turn-tables." In pursuance of notice given 
as required by the Act, application was made to the Circuit 
Judge for the appointment of commissioners to appraise the 
damages which the owners of the premises would sustain, by 
having them taken by the company, for the purposes stated in 
the petition. On the hearing, one of the owners of a portion of 
the land sought to be condemned appeared and resisted the appli- 
cation ; and, at his instance, the president of the company was 
sworn ; and stated that the ground was principally sought and 
needed for the purpose of erectnig shops thereon, for the repair 
of cars and locomotives. After hearing the parties, the Circuit 
Judge, as he certifies, "denied the application, for the reason, 
mainly, that under the language of the charter, the company 
have not the power to condemn the lands for the purpose of 
erecting shops thereon," and filed the following stipulation : " If, 
upon the foregoing petition and evidence, the court shall be of 
opinion that the commissioners should be appointed as asked for, 
I hereby waive the necessity of an alternative mandamus, and 
consent that an absolute mandamus be awarded in the first in- 

We think the Circuit Judge misconstrued the language of the 
charter of the company. It is authorized " to maintain and con- 

DECEMBER TERM, 1855. 125 

The Chicago, Burlington aud Quincy Railroad Co. v. Isaac Gr Wilson, 

tinue a railroad, with a single or double track, and with such 
appendages as i7iay he deemed necessary for the coni)enif.nt 
use of the same.'^' We cannot entertain a doubt that shops for the 
repair of cars and locomotives are appendages necessary, for the 
convenient use of a railroad.(a) In construing both contracts 
and laws, courts must necessarily apply their general knowledge 
of the subject matter to which they refer. We know what is a 
railroad, a car, and a locomotive, and their relative uses, and at 
least some of the purposes to which they are applied and some 
of the incidents resulting from their use. To deny that we know 
that freight houses and depots, that switches, side-tracks, wood 
yards and water tanks, are necessary appendages to the con- 
venient operation of a railroad, would admit a degree of igno- 
rance which would unfit us for the places we occupy. These 
are things known to all men in this country, at least, whether 
skilled or not in that department of business. We know, too, 
equally well, in common with all of common experience and ob- 
servation, of what is going on around us, that the rails by use 
become damaged, and have to be taken up and repaired, and 
that cars and locomotives are constantly liable to break and be- 
come unsafe and unfit for use till repaired ; and the means for 
making such repairs are certainly necessary for the convenient 
use of the road. It is not a reasonable or satisfactory answer, 
to say that they may be sent away to the manufactories for 
repair. While it might be possible to do so, the delay and ex- 
pense would render it very inconvenient, to say the least, both 
to the company and the public. It is possible to operate a rail- 
road without depots, for they are not as indispensable as the track 
or the cars, or the motive power ; and yet we do know that all 
railroad companies provide themselves with depots as fast as 
practicable ; and we have equal knowledge of the fact that all 
roads provide repair shops as soon as practicable. It would be 
hard to find a railroad company, in all this country, which has 
operated a road of any considerable extent for a single year, 
without erecting for itself shops for the repair of its cars and 
locomotives. The question is, what did the legislature mean by 
the word appendages ? They certainly meant something con- 
nected with and accessary to the road, and not the road itself. 
We must presume that the law-makers had a general knowledge 
of what accessories were necessary to the convenient operating of 
a railroad, and that among these were, almost indispensable, shops 
for repairing the rolling stock. There can be no doubt that they 
intended to embrace all such conveniences as would be necessary 
for the successful conduct of the business of the road, as depots, 
repairing shops, and the like, under this general designation, 
without particularly specifying either. The history of this class 

(a) Low vs. G. &C. U. R. Co., Ism. R. 325. 


The Chicago, Burlington and Quiucy liailroad Co. w. Isaac G, Wilson. 

of our legislation shows that such was the intention and under- 
standing of ths legislature. In some railroad charters more, 
and in some less, of these conveniences are specially authorized, 
while in others none are particularized ; while in all cases, lest 
some should be omitted, some general expression is used, 
the manifest design to cover all that may be found useful and 
convenient. In many of the former, shops are expressly named. 
Of this legislation, I shall only refer to two cases. The act of the 
22d of June, 1852, entitled" An act to amend the law condemning 
right of way for purposes of internal improvement," is the one 
under which this petition was filed. Quoting only so much of 
the first section of that act as is applicable to railroads, it is pro- 
vided : " That when any" " railroad" " shall have been located 
by any" " corporation vested with power to take and apply pri- 
vate property in the construction or use of such road," " or for 
any purpose connected with the same," " such as constructing" 
"embanicments, excavations, spoil-banks,turn-outs, depots , engine 
houses, shops, or turn-tables;" " and the right or title to property 
required for any such uses or purposes, cannot be acquired by 
purchase ; a petition shall be filed in the clerk's ofiice of the 
Circuit Court, " &c. Now, it is manifest that the legislature 
here understood shops were necessary appendages to the con- 
venient operation of railroads. Again : the same thing is man- 
ifest in the general railroad law of 1849, by the third subdivision 
of the twenty-first section of which, companies organized under 
that law are authorized " To purchase, and by voluntary grants 
and donations receive, and by its oflicers, engineers, and sur- 
veyors and agents, enter upon and take possession of and hold, 
and use all such lands and real estate, and other property as may 
be necessary, for the construction and maintenance of its rail- 
road and stations, depots, and other accommodations necessary 
to accomplish the object for which the corporation is created, but 
not until compensation," &c. Here the legislature, has specified 
few of the objects supposed to be necessary, and embraced the 
others in the general term, accommodations, which a subsequent 
part of the same law shows was understood and intended to em- 
brace shops ; for, by the 8th specification of the 28th section, 
the railroad companies are required to report " The number of 
engine houses and shops, of engines and cars, and their char- 

I take this to be simple demonstration that the legislature 
intended to grant to companies, organized under that act, the 
right to acquire grounds on which to erect shops, and that too 
nnder the general designation of accomtnodations. They cer- 
tainly understand this word to embrace shops, else they were 
required to report that which they were not authorized to con. 

DECEMBER TERM, 1855. 127 

The Chicago, Burlington and Quincy Railroad Co. v. Isaac <jr. Wilson. 

Struct and hold, wMeh would be simply absurd. I assume, then, 
that it will not and cannot be denied that the power was granted 
to these companies, to acquire grounds on which to erect shops, 
and if so, then the same law granted to this company the same 
right, even if it had not been conferred by its original charter, 
for the last section of that law provides as follows : " All existing 
railroad corporations, within this State, shall respectively have 
and possess all the powers and privileges, and be subject to all 
the duties, liabilities and provisions contained in this act, so far 
as they shall be applicable to their present conditions, and not 
inconsistent with their several charters ; and all railroad com- 
panies, that are now constructing their roads, may acquire titles 
to lands necessary for that purpose, under the provisions of this 
act." This company was already in existence, and I presume it 
will hardly be contended that this provision of the general rail- 
road law, which authorized the erection of shops, was inappli- 
cable to it or inconsistent with its charter. This law, so far as 
applicable to and not inconsistent with the original charter of 
this company, became a part of its charter, as well as the several 
special amendments thereto which have been subsequently passed 
by the legislature, and which, for the purposes of the present 
inquiry, it is not necessary to advert to particularly. 

We are of opinion that the Circuit Judge was mistaken in his 
construction of the charter of the company, that it was not 
authorized to acquire lands by condemnation, for the purpose of 
constructing shops thereon, and this, too, whether we confine 
ourselves to the language of the original charter, or look to the 
provisions of the general railroad law subsequently passed, the 
provisions of which are made applicable to it. 

Having thus settled the question upon which the difficulty 
arose in the mind of the Circuit Judge, and upon which he 
refused the application, we might, perhaps, without impropriety, 
dismiss the subject here, but some other questions were discussed 
at the bar, which we deem it proper to dispose of now. One 
of these is, that the road itself having been actually completed 
and running, the power to condemn land, either for the track of 
the road, or for depots or other appendages, is exhausted. In 
this view we cannot concur. It would be a disastrous rule 
indeed to hold, that a railroad company must, in the first instance, 
acquire all the grounds it will ever need for its own convenience 
or the public accommodation. Here^^ our railroads are built 
through extensive districts of country, at present almost entirely 
unimproved, and which now afford no business whatever, but 
which are as fertile as any in the world, and which, ere many 
years have elapsed, will probably be peopled with an industrious 
and prosperous population, affording an immense business to the 


The Chicago, Burliugtou aud Quiucy Railroad Co. r. Isaac G. Wilson. 

roads which pass through them. Probably not one-tenth of the 
land in the vicinity of this very road is now in cultivation, but 
no one, acquainted with the subject, can doubt that it is destined, 
at no distant day, to be brought into as high a state of produc- 
tivetiess as any of the older States. This will increase the pop- 
ulation ten-fold, and may reasonably be expected to increase the 
business of the road in the same ratio, and hence there must be 
a corresponding increase of the rolliug stock to do this increased 
business, requiring also a greater amount of machine-shops for 
its repair, as well as an increase of depots and other accessory 
accommodations. We cannot suppose that it was the intention 
of the legislature to oblige the company to acquire all the land, 
in the first instance, which, in any event, it should ever want, to 
do the largest amount of business it may ever hope to attain. 
The greatest degree of sagacity could hardly determine precisely 
what conveniences the future might demonstrate to be necessary 
to do its business with facility. It may be said that the com- 
pany should, for the future, depend upon voluntary purchase, 
having exhausted its power of condemnation, as is supposed. 
But if its power to condemn is exhauste I, then its right to pur- 
chase, or acquire in any other way, is also exhausted, for it pos- 
sesses neither, only as it is granted by its charter, and that gives 
authority to acquire, by condemnation, whenever it does by vol- 
untary purchase. We are of opinion that the company still has 
the right to acquire such lands as it may need for the accommo- 
dation of its business, from time to time, by the coercive process 
pointed out by the law. 

The remaining objection urged is, that in determining whether 
such a case was made before him as required the appointment of 
commissioners, the circuit judge acted judicially, and in such a 
case we cannot grant a mandamus to require him to reverse his 
decision. Granting the assumption, and the conclusion legiti- 
mately follows. We cannot by mandamus control the judicial 
action of any inferior tribunal. We can, in such a case, only set 
it in motion, and require it to act one way or the other, but 
without determining how it shall act. And so, too, where the 
inferior tribunal is vested with a discretion in the performance 
of a duty imposed by the law. We can only compel the per- 
formance of the duty, without controlling that discretion or say- 
ing how the duty shall be performed. Here the act to be per- 
formed by the circuit judge is strictly of a ministerial character, 
and so it was determined by this court, in the case of The Illinois 
Central Railroad Company v. Rucker, 14 111. 153, where a man- 
damus, in precisely such a case, was awarded by this court. 
When such a case is made as is required by the statute, the judge 
has no discretion whether he will appoint commissioners or not. 

DECEMBER TERM. 1855- 129 

The Chicago, Bui-lington and Quincy Railroad Co. v. Isaac G. Wilson. 

It is his imperative duty to do so. Necessarily lie must look to 
see whether such a case is presented as authorizes and requires 
him to act, and such is the case with every officer who is called 
upon to discharge a ministerial duty. The sheriff, before he 
makes a deed, must examine and determine whether there was a 
valid judgment, execution and sale under it A clerk, before he 
issues an attachment or a capias, must examine and see whether 
the affidavit, on which the application is made, is such as the law 
requires, and so of every other ministerial duty which any officer 
is required to perform, and although, in determining whether the 
act should be done the officer may have to decide, in his own 
mind, important legal principles, as is often the case, yet that 
does not make such decision a judicial act, which can only be 
reviewed on appeal. Such is not the true test of the judicial 
character of an act. A distinction was attempted to be drawn 
between this and other similar duties, fi^om the fact that the 
adverse party is required to be notified to appear before the 
judge, at the time of the application for the appointment of the 
commissioners, and hence it is inferred that he has a right to 
contest the right of the applicant to have the commissioners 
appointed. He may undoubtedly show, if he can, that such a 
case is not presented, as requires the judge to act at all, but the 
important and substantial purpose for which he is called there 
is, that he may be heard' upon those matters in which the judge 
may properly exercise a discretion ; that he may see that none 
but fair and impartial men are appointed commissioners. Beyond 
this the law has vested no discretion in the officer which it has 
appointed to make the selection for the parties. If the officer 
applied to may refuse to appoint them, in one case where the 
law has been complied with, he may in all cases, although never 
so clear a case is made out, and as the company has no redress 
but by mandamus, if his determination is held to be judicial, 
and not examinable on such an application, it is in the power of 
any of the various officers to whom this application may be 
made, to stop the progress of a railroad altogether. Such was 
never the intention of the legislature. 

It is no answer to say that if one officer erroneously refuses to 
make the appointment, application may be made to another. 
Granting this to be so, and it is no more the duty of the last to ap- 
point than it was of the first. And there is no more certainty 
that he will do so, and if there is no remedy against the first 
refusal, there can be none as to the last, and the party may be 
left without remedy. It is the duty of each to act when a proper 
case is made, requiring action. One officer might think that the 
company is asking too much ground for a depot, or that it has 
made an injudicious selection, and that a depot is not needed at 

ILL. REP. — xvn. — 8. 


The Chicago, Burlington and Quincy Railroad Co. v, Isaac G. Wilson. 

the proposed place. Another might be of opinion that the road 
was injudiciously located, and required it to be changed, before 
he would appoint the commissioners to enable it to acquire the 
property. It is possible, it is true, that a company may abuse 
the trust reposed in it, and seek to acquire property not needed 
for the purpose of the road or its buisness, but if such objec- 
tions were listened to, for the purposes of vesting in the various 
ministerial officers, whose duty it is made to assist in acquiring 
the necessary property for the use of the road, the right to de- 
termine where the road shall be made, or where a depot shall 
be located, or how much land is wanted for a wood-yard, or 
where a water tank shall be erected, a far greater evil would 
result than the one attempted to be avoided. The legislature 
had a very satisfactory assurance, that the powers granted to 
these corporations would not be abused by coercing from the cit- 
izens more land than was necessary for the legitimate purposes 
of their roads. The land thus acquired, can only be held and 
used for specific purposes. They are not authorized to specu- 
late and traffic in the land thus acquired, but can only hold it for 
the purpose of the railroad and its business accommodations. 
With this limited right to hold land, it was not to be supposed 
that any company would be so blind to his own interest aa 
to go to the expense of acquiring land which could be of no use 
to it. It would have been just as reasonable to have provided 
in the charter, that the company should not throw away its 
money in any other useless and aimless mode. It is possible, it 
is true, that a company might, in disregard of its duty to itself, to 
the State and to individuals, apply to condemn land which it did 
not need, and for purposes other than those authorized by the law. 
When such a case of bad faith, abuse of power and violation of 
duty occurs, the law will readily find a remedy adequate to the 
protection of both the public and private rights, but we can see 
no pretence of such a case here, it being established that the 
purpose for which this land is sought to be acquired is such as 
,is authorized by the company. Had the judge been correct in 
his construction of the charter, that the company was not author- 
ized to acquire land for the purposes for which this was sought, 
then a case had not been piesented which required him to act 
at all, and he would have been justified, and it would have been 
his duty, to refuse to appoint commisioners. In pursuance of 
the stipulation filed, a peremptory mandamus must be awarded. 

Skikner, J. I do not understand the foregoing opinion as 
approving the doctrine contended for upon the argument, that 

DECEMBER TEEM, 1855. 131 

The Great Western Railroad Company v. Andrew J. Thompson. 

it is the sole province of tlie corporation to determine what 
property its exigencies require, and that such determination is 
conclusive upon the courts. Whether the corporation has the 
right to coerce the condemnation of the property sought to be 
condemned and taken, or any part thereof, is a question for ju- 
dicial determination, and never intended by the legislature to be 
conferred upon the corporation. The appointment of commis- 
sioners, by the court or judge, is the inception of the proceeding 
which is to terminate in final adjudication upon the rights of the 
parties, and not an adjudication which determines those rights, 
and in its nature is a ministerial act. 
In this view of the case I concur in the opinion of the court. 

Mandamus awarded. 

The Great Western Railrroad Company, Appellant, v. 
Andrew J. Thompson, Appellee. 


Railroad companies are not liable for injuries to cattle, unless they be wilfully 

or maliciously done,or done under circumstances exhibiting gross negligence. 

These companies are not bound to use the highest possible degree of care 

to wards animals coming in the way of their trains. 
The case of the Chicago ami Mississippi Railroad Company v. PatcMn, in 16th 

Illinois, relerred to and approved. 

The appellee sued the appellant, in "case, for carlessly and 
negligently killing his horse. Plea, the general issue. 

On the trial, the appellee examined several witnesses, none of 
whom were present at the time of the casualty, and gave 
no direct or conclusive testimony in regard to it. One of these 
witnesses testified, that he was shown the track of the horse that 
was killed, and if so, the horse, at no time he was running, was 
more than thirty feet from the track of the railroad. 

On the trial, the appellant examined some three or four wit- 
nesses, who were on the train at the time of the casualty, who 
testified : That they were going from Jacksonville to Naples ; 
that the horse first appeared some distance ahead of the train, 
approaching it at a right angle from the south ; that when he 
came near the road, and without crosssing it, he turned to the 
left, a,nd ran some distance between a farm and the road, until 
he came to the timber, and then turned round the corner of the 
farm in a southern direction, and that they lost sight of him, he 
going into the timber ; that, when the horse first appeared, the 


The Great Western Railroad Company v. Andrew J Thompson. 

usual expedients, of whistling, to frighten stock away, and appli- 
cation of brakes, to moderate speed, were resorted to ; that when, 
the horse first appeared, they were on a down grade, and so con- 
tinued until they came to a curve, and at the steepest of the 
grade, about a culvert, the horse became entangled, and was run 
over and killed by the train ; that, after the horse disappeared 
in the timber, they had no further apprehension of trouble, until 
the horse suddenly re-appeared, not far ahead of the train, 
approaching the road from the south ; that, as soon as the horse 
was discovered so approaching, the brakes were applied ; that 
he sprang on the road a short distance ahead of the train, and, 
after a jump or two on the track, became entangled in the cul- 
vert, and was run over and killed. The witnesses testified that 
they did all they could, in the management of the train, to pre- 
vent the casualty ; that it was unavoidable, and that no human 
power or foresight could have avoided it ; that if the engine 
had been reversed at the time of the re- appea ranee of the horse, 
and the brakes applied, the casualty could not have been avoided. 

In behalf of the appellee, the following instructions were 
given to the jury, which were excepted to by the counsel for 
appellant : 

1st. That if they believe, from the evidence, that the horse 
of the plaintiff was killed by the railway train of defendant, and 
that, by the exercise of proper care and diligence, the agents of 
said company, in charge of said train, might have prevented 
said killing, the said company are responsible to said plaintiff. 
for the damage accruing ; and they must find for the plaintiff in 
the amount of the value of the horse so killed. 

2nd. That, if they believe from the evidence that the agents 
of the company, in charge of the train in question, had reason- 
able cause to apprehend a collision with the horse of the plaintiff, 
and did not use all the means in their power to prevent the dam- 
age to the horse, they must find for the plaintiff a verdict in the 
amount of the value of the horse so killed by said train. 

In behalf of the appellant, the following instructions were 
asked : 

1st. That the charge in the plaintiff's declaration is, that his 
horse was killed by the negligence of the defendant's agents, 
and that he must prove clearly, to the satisfaction of the jury, 
and by preponderance of his testimony, that the horse was so 
killed, before he is entitled to recover in this case. 

2nd. That if the jury believe the positive statements of the 
agents of the defendant, who were present at the transaction, 
that the killing of the plaintiff's horse was the result of inevit- 
able accident, then the jury must find a verdict for the defendant. 

DECEMBER TEEM, 1855. 133 

The Great Wesitem Railroad Company v. Andrew J. Thompson. 

The court gave the first instructions asked for by the appel- 
lant, and modified the seoond instruction that they asked, by 
striking out the words " the result of inevitable accident, " and 
substituting the words ' ' unavoidable, and that they used all the 
diligence in their power to prevent it ; " to which modification 
and the instruction as modified, appellant, by his counsel, 

The jury rendered a verdict for the appellee, and the appel- 
lant, by his counsel, moved to set aside the same, and to grant a 
new trial. 

The motion for a new trial was overruled, and the appellant 

The errors assigned in the case are: 

1st. That the court below erred in giving the several instruc- 
tions that were asked for by the appellee. 

2nd. That the court below erred in modifying the second 
instruction that was asked for by the appellant. 

3rd. That the court below erred in not granting the motion 
for a new trial. 

D. A. Smith, for Appellant. 

J. L. McCoiWEL, for Appellee. 

ScATES, C. J. The instructions given for defendant here, 
and the modification of plaintifl's second instruction, were 
erroneous, and for which this judgment must be reversed. 

The general doctrine upon the subject of care and neglect, as 
laid down and applied, between common carriers and passen- 
gers and goods under their charge, is not the doctrine applicable 
to, and which governs circumstances like these. 

We gave to this subject a very careful consideration, and a 
full examination of authorities in the case of The Chicago and 
Mississippi Railroad Co. i). Patchin, 16 111. R. 198 ; and, upon 
further reflection, are more confirmed in the conviction that the 
true rule to fix the liability of plaintiffs and establish the rights 
of defendant in such cases was there suggested. And we must 
think it would promote the public good if these rights and 
liabilities were known and understood, (or) 

A common impression that railroads are under the liabilities 
of insurance for persons they carry, and for the highest possible 
degree of care towards all persons and animals consorting about 
the track and trains, leads to a greater degree of carelessness 
in others than is compatible with their own safety or the interest 
of the roads What, could have been done by the company in 
this case more than is shown to have been done by the record, 

(a) Sec C. & M. R. Co. vs. Patchen 16 lU. R. 198, where other cases ai'e uoted & post 
541 ; SI. L. A. &li. R. »s. Liuder, 39 111. K. 433 ; T. W . & W. R. R. vs. Furguson, 42 
Id. 449. 


The Great Western Railroad Company r. Andrew J. Thompson, 

I am at a loss to conjecture, even had tliey been under the 
degree of care supposed. If juries will assess damages under 
such circumstances, parties asking them will only increase their 
misfortune by adding thereto costs. 

There is nothing in the record showing any want of care in 
the defendant, and to us the plaintiffs appear equally blameless. 

Judgment reversed and cause remanded for new trial. 

Judgme^it reversed. 

Skinner, Justice. Not having the record before me for exam- 
ination, in connection with the foregoing opinion, I do not feel 
justified to dissent fi-om the judgment of the court reversing the 
judgment below, but I deem it my duty here to enter my protest 
against the doctrine that railroad companies in this State are 
not liable for injuries done by them to stock upon their roads, 
unless they be willfully and maliciously done, or by such gross 
negligence as is equivalent thereto. 

This I understand to be the rule laid down in the case of 
The Chicago and Mississippi Railroad Co. v. Patchin, referred 
to and approved in the foregoing opinion. I am aware that 
recent cases may be found apparently sanctioning this doctrine, 
especially in those States where by law the owner is a tres- 
passer by permitting his stock to run at large upon the unen- 
closed grounds of another. 

By the settled law of this State stock may lawfully run and 
range upon unenclosed lands, and I can find no satisfactory rea- 
son for distinguishing, in this respect, unenclosed railroads from 
common highways and open prairies and woodlands. The law 
must be the same in either case. It cannot be questioned, that 
for willful and malicious injuries to another's property, and for 
injuries caused by such negligence as evinces a wanton disregard 
of consequences, legal liability, universally ^ti^ches, to i]ie party 
in the "wi'ong and causing the injury. In my opinion the law 
holds railroad companies to the same degree of care, and liable 
for the same degree of negligence in case of injm-ies done by 
then to stock upon their unenclosed roads, as in case of injuries 
by individuals to stock upon the common highways and open 
lands of the State ; and I can sanction no doctrine extending 
immunity in this respect to railroad companies not common to all. 

Persons and corporations must so use their property as to do 
no "innecessary m]vivy to others, and the law is the same in 
regard to liability in the one case as the other. Nor am I pre- 
pared to concede that, in cases like the present, proof of the 
injury does wot prima facie establish liability, requiring expla- 
nation in discharge of such i^rima facie liability. 

DECEMBER TERM, 1855. 135 

Smith et al. v. McConnell et al. 

Railroad companies are common carriers, and the law is well 
settled that in case of injury to person or property in the course 
of their transportation, proof of the injury, or ordinarily acci- 
dent and injury, presumes the fault of the common carrier, and 
devolves upon him the burthen of proving the facts in discharge 
of liability. I am not prepared to admit that this doctrine is 
not properly applicable to cases of injuries by railroads to stock 
upon their unenclosed roads. It is a common principle of the 
law that in actions for injuries to the person or property of 
another, which, according to the experience of mankind, are 
usually produced by the wrong of another, proof of the injury 
presumes the ^vrong, and the party committing it must prove his 
justification. Besides, the facts are peculiarly within the knowl- 
edge of the company and its servants, and easy of proof by the 
company. The owner of the stock finds them killed by a train 
of cars and their carcasses strewn upon the road, but the circum- 
stances attending the killing he ordinarily knows nothing of, 
nor by whom they can be proved. 

The law should afford substantial remedies for wrongs, and 
when men learn that they are not obtainable through the law, 
there is danger of the worst of evils ; the resort to that sup- 
posed redress suggested by feelings of passion and revenge. 

David A. Smith, Administrator, et al., Appellants, v. Mur 
RAY McCoN]S"ELL et al., Appellees. 


The holder of alegal title uot in actual possession, cannot, as a general rule, main- 
tain a bill to quiet his title, and compel a relinquishment of adverse claims. 
Equitable titles, which cannot be enforced at law, may stand difl'ereutly. 

Posthumous children take by descent with the antecedent children or with other 

The heir is owner of the lands of an intestate and the rents and profits derived 
therefrom, until divested by an order of sale or decree for the purpose of paying 

An administrator takes no estate , right, title or interest in reality. He takes only 
a power. 

An administrator cannot in equity obtain relief by the removal of adverse apparent 
titles to the lands of his intestate, or convert an equitable into alegal title. 

The facts of this case, as they appear from the pleadings and 
proofs, are as follows : 

In September, 1837, Jesse McKee conveyed for$450, to Mc- 
Connell, Vansyckel and Ormsbee, a piece of ground in Naples, 


Smith et al. v. McCounell et al. 

covenanting that he was seized of an indefeasable estate in fee 
simple, that he had good right to sell, that it was unencum- 
bered, and to warrant and defend the title. In July, 1839, 
Ormsbee conveyed his interest in the property to McConnell 
and Vansyckel. 

In December, 1837, Jesse McKee for ^5,000 conveyed with 
general warrant,' certain Naples property to Delahay and died 
testate in December, 1838, appointing his brother, Wm. McKee, 
his executor with power to sell real estate to pay debts, and 
after payment of debts his property to be equally divided be- 
tween his widow and nephew, the said Jerome McKee, de- 
ceased. Wm. McKee proved the will and qualified as executor. 

In July, 1849, McConnell and Vansyckel filed a bill in chan- 
cery in the Circuit Court of Scott, alleging the foregoing 
facts ; that Delahay made a mortgage to one Neice, including 
one of the items of property conveyed to Delahay as aforesaid, 
and that was estimated in the conveyance at $150. That the 
mortgage was assigned to McConnell and Vansyckel and they 
foreclosed the same and became the purchasers of the same. 
That at the time Jesse McKee made the aforesaid deeds, he had 
no title to the items of property above referred to, " and the 
said McConnell and Vansyckel further aver that said land, at 
the time said McKee sold the same, belonged to Charles Collins, 
and to no other person ; and in 1848 the said Charles Collins 
asserted his right thereto, and said land never having been in 
the possession of said McKee, .but it being a vacant, unimproved 
tract of land, no actual eviction could occur against said com- 
plainants otherwise than in this, the said Collins exercising said 
right as owner of said land, sold and by deed conveyed the same 
to Marray McConnell, who is now the owner thereof, having 
received from the said Collins a conveyance therefor, has taken 
possession thereof, and thereby evicted said complainants." 
That covenants in Jesse McKee's deeds have been broken and 
they have a right to purchase money aud interest out of his 
estate. That personal estate had been fully administered and 
that certain items of real estate that are in controversy in this 
case belonging to said estate, are in the hands and possession of 
Wm. McKee, as executor. That the widow had married one 
Sutphen, and they had quit-claimed their interest in the real es- 
tate to Jerome McKee, the other devisee, who had died leaving 
a widow, Isabella McKee, (no child, )his father, the said Wm. 
McKee, and his brother Samuel McKee, as his heirs at law, 
against whom the bill was exhibited as defendants. Answer on 
oath is waived, and the executor is called upon to make dis- 
covery as to title and estate of Jesse McKee, deceased. Prayer 
of bill for sale of the specific items of property in controversy 

DECEMBER TERM, 1855. 137 

Smith et al. v. McConnell et al. 

in this case, or for such other and farther relief as complainants 
were entitled to. Copies of deeds above referred to (excepting 
deed of Collins to McConnell) are annexed to the bill, as also 
copy of will of Jesse McKee and probate thereof. Subpoena 
ad respondendum served upon the executor, who did not*answer 
Bill taken j»ro confesso -y. him and co-defendants, as non-resi- 
dents, at appearance term, September, 1849, and decree ren- 
dered for sale of property in controversy in this case ; adver- 
tised and sold by the master in chancery of Scott county, 19th 
of November, 1849. All sold to McConnell except the sixth 
item in master ' sreport, which was sold to John Abbot for $55. 
The sale produced twenty-one and one-half cents more than amount 
of decree, interest and costs. The master reported sales and con- 
veyances to the next term of the court, and his report was ap- 
proved by the court, and it was ordered by the court that pur- 
chasers have immediate possession of the estate sold, and rents 
and profits from day of sale. 

In February, 1853, appellants exhibited their bill, -y. appel- 
lees in the case, stating that Jerome McKee, Sen., died intestate 
in Ohio, in April, 1849. That at the time of his death, not by 
descent or devise, but as a purchaser for a valuable considera- 
tion, he was seized in fee of the items of real estate in contro- 
versy in this case. That McConnell and Yansyckel in July, 
1849, on a groundless and unjust claim against the estate of 
said deceased, as claiming through the estate of Jesse McKee, 
deceased, filed a billz;. Wm. McKee, Isabella McKee, and Samuel 
McKee, as heirs at law of the said Jerome McKee, deceased, 
and at the next term of the court obtained a decree by default 
for sale of said real estate, and that it was sold as alleged in the 
master's report above referred to. "When in fact and in truth 
your complainant Jerome McKee, Jr., as a posthumous child of the 
said deceased, and said Isabella, born 15th November, 1849, at the 
time of obtaining said decree is, and was to be regarded as, the 
sole heir at law of said deceased, and as born in the life time of 
said deceased." That McConnell, bought the 7th item of said 
real estate for $10 and sold it to Lee for some $300, and that 
the appellees were in possession of said items of real estate. 
That David A. Smith was appointed administrator of said de- 
ceased in July, 1852, and in December, 1852, obtained order 
of sale of said real estate to pay debts of said deceased, and 
that there would probably be left a surplus of said estate after 
selling enough to pay debts. That it would not be safe or just 
to execute the order of sale while applelees were in adverse pos- 
session of the real estate, claiming title thereto, and if sold un- 
der such circumstances would produce little or nothing. That 
as far as appellees or any of them had claims against the estatte 


Smith et al. v. McConnell et al. 

of Jesse McKee, deceased, they were barred by tbe statute of 
limitations and non-claim. Prayer of bill that any claim of the 
appellees, any or either of them, to sell real estate, be vacated for 
protection of sale under order and for ultimate benefit of Je- 
rome McKee, junior, as to any surplus not sold, and that appel- 
lees give possession of lands when sold, and for general and 
alternative relief. 

John Lee answers that he was purchaser for valuable consid- 
eration of Mc Connell of eighty acres of wild land, went into pos- 
session of it and improved it, and claims to be re-imbursed for 
his improvements if his title fails. Relies upon proceedings and 
decree at suit of McConnell and Vansyckel above referred to — 
as in full force and a bar to this suit. That Jerome McKee, 
senior, had no other title or claim to the land in controversy 
than as devisee of Jesse McKee, deceased. That in the suit 
of McConnell and Yansyckel to sell the lands, Wm. McKee as 
executor was the only necessary defendant, and that Jerome 
McKee, junior, as posthumous child of his father, is bound by the 
decree in that case — that no such person as the posthumous child 
was ever heard of until this suit was brought. That Wm. Mc- 
Kee as executor advised and encouraged the institution of the 
suit of McConnelFand Vansyckel, and before it was commenced 
told the complainants that Jerome McKee had died without 
child. That Isabella McKee being entitled to dower in the lands, 
is a necessary party to the suit, and it ought to be dismissed 
because she is not party. That bill ought to be dismissed for 
multifariousness, as to parties and objects of the bill. Denies 
that Smith, as administrator, had authority to file bill to quiet 
title to the land, or has obtained any proper order to sell land — 
says that his letters of administration were obtained by fraud — 
that the whole of the proceedings are fraudulent and void — and 
makes exhibits of proceedings of County Court of Scott, granting 
administration to Smith, allowing claims against estate on notice 
— order of sale of real estate. 

McConnell files plea in bar, settino- out record and proceed- 
ings at suit of himself and Vansyckel above set forth, and saying 
that the same rights were settled in that case that are sought to 
be relitigated in this case. 

Replication was filed to the foregoing- answer and plea. 

Vansyckel filed demurrer assigning six causes specially 

Stipulation was entered into as to certain facts, April term, 
1855, cause to be heard in vacation, and was heard October 
term, 1855, on same stipulation and four deeds. 1st, Sutphen 
and wife quit-claim deed to Jerome McKee, 1st of January, 
1848. 2nd, Deed of same date, to same, by Wm. McKee, exe- 
cutor, conveying same property described in first deed, in con- 

DECEMBER TERM, 1855. 139 

Smitli et al. v. McConnell et al. 

sideration of Jerome McKee making his note at one day's dat® 
to Wm. McKee for ^2,400, balance due executor from estate of 
Jesse McKee, deceased. 3rd, Quit-claim deed, July, 1848, Mc- 
Connell to Jerome McKee for one of the items of property in 
controversy. 4th, General warranty deed of same date, to 
same McConnell and Vansyckel and wives for $150 for part of 
another of the items of property in controversy in this case. 

Decree dismisses bill absolutely as to appellant Smith, and 
without prejudice as to appellant McKee. 

Errors assigned by appellants severally : 

1st, That court below dismissed bill. 

2nd, That court below did not grant relief specifically asked 
in the bill. 

SrA, That court below did not decree account of rents and 
profits allowing for improvements, if any. 

D. A. Smith, for Appellants. 
M. McConnell, for Appellees. 

ScATES, C. J. The decree should be affirmed. The court 
have, in Alton Marine and Fire Insurance Co. v. Buckmaster 
et al., 13 111. R. 205, sanctioned the doctrine laid down in the 
Trustees of Louisville v. Gray, 1 Litt. R. 147 ; and Harris -y. 
Smith, &c., 2 Dana R. 10, that '* the holder of a legal title not 
in actual possession, cannot, as a general rule, maintain a bill to 
quiet his title, and to compel a relinquishment of adverse claims." 
(«) Niven -y. Belknap, 2 John. R. 573. " The reason why the party 
out of possession cannot maintain such a bill, is, that he may 
bring an action at law to test his title, which, ordinarily, a party 
in possession cannot do ; such a bill is only entertained by a court 
of equity, because the party is not in a position to force the 
holder of, or one claiming to defend under, the adverse title, 
into a court of law to contest its validity ; and this, as a general 
rule, is the test to which a court of equity will look to determine 
whether the necessity of the case requires its interference." 13 
111. R. 205. And the question in 2 Dana R.. 10 was regarded as 
one of jurisdiction. 

But the reason of the rule, as thus laid down, is applicable to 
legal titles in persons out of possession, and would not embrace 
mere equitable titles, which could not be asserted at law. 
Though bills may be brought, sometimes, before establishing 
complainant's rights at law, they are entertained with great cau- 
tion, even on behalf of persons in possession, when there is no 
such disturbance of the right or possession as will enable the 

(o) M'Connel et. vs. Smith, 27 1\\. R. 234 ; Miles et al. os. Danforth, 37 ni. R. 156 ; 
Stout et al. OS. Cook, Id. 24o ; Phelps Admr. vs. Fnnkhouser, et al. 39 m. R. 492 ; As 
to unoccupied lands, see Laws 1869, p. 


Smith et al. v. McConnell et al. 

party to maintain his action at law. 1 Litt. R. 147. See 1 
Atk! R. 284 ; 2 Atk. R. 484 ; Prec. Cli. 531. 

This case presents no such grounds. The heir is out of pos- 
session and the defendants in, and the courts of hxw are not 
only open, but competent to try his title, which is a legal one. 
Upon recovery by him at law, under our statute for bringing 
ejectments, under which the real title may be put in issue and 
determined, no apparent ground of equitable jurisdiction or in- 
terference would remain, not even in the shape of a cloud, upon 
the title. 

The question involved seems to be one of a simple, naked 
succession by descent, being cut off by a decree and sale in a 
proceeding in equity against these alone who would have been 
heirs of the same intestate, had not this posthumous child been 
born in due time, together with the executor of the testator, 
from whom the intestate took by devise. 

Our Statute of Wills (Rev. Stat. '45, p. 547, Sec. 54) has 
expressly provided for such a case, and that they shall take "in 
all respects as though he, she or they had been bor7i in the life- 
time of the intestate." An analogous statute (10 and 11 Wm. 3, 
Cap. 16) was passed in England, providing that posthumous 
children should take estates limited in remainder, under mar- 
riage or other settlement. s 

In Reeve -w. Long, 1 Atk. R. 227, the House of Lords, revers- 
ing the judgment of the Court of King's Bench, held that a post- 
humous child could take a contingent remainder limited under 
an executory devise in a will. This case was before the statute 
of William Third. And tradition gives us a reason for omitting 
such devises in the statute, that the Lords were unwilling to 
throw thereby a doubt upon the correctness of their own deci- 
sion, with which the judges were much dissatisfied, and blamed 
the judge who tried the cause for suffering a special verdict to 
be found. Id. Butler's note to Coke Litt. p. 298. 

It is said there is no ground for a distinction under the statute 
between executory devises and marriage and other settlements. 
Buller Nis. Pri. p. 105 ; and in Roe T). Quartly, 1 Term R. 634, 
it seems to have been taken for granted that executory devises 
were within the statute. This case, among others, was cited and 
approved in Thcllusson v. Woodford, 11 Ves. Jr. R. 140, and 
the court sustained an executory devise dependent upon nine 
lives in being, and the survivor of them. And although it was 
the manifest intention of the testator to prevent the alienation 
of the property as long as he could, and provide for an accumu- 
lation of rents and profits during the same period, yet, as much 
as the law abhors perpetuities — and judges set their faces against 

DECEMBER TERM, 1855. 141 

Smith et al. i\ McConnell et al. 

them — it was held that the period of gestation mig-ht be counted 
as a life, in being both at the beginning and the end of the nine 
lives ; thus doubling the period of gestation, and treating each 
child e7z ventre sa mere, at the beginning and at the end of the 
lives, upon which the executory limitation depended for vesting, 
as a life in being, sufficient to sustain it. Many decisions are re- 
viewed in it, and all of which fully sustain the position that such 
a posthumous child is not only capable of taking himself, but is 
such a life in being as will support a contingent remainder under 
an executory devise by will, and a contingent remainder limited 
by marriage or other settlements. See Love v. Wynham, 1 
Mod. R. 50 ; Scatterwood v. Edge, 1 Salk. 229 ; Humberton 
'O. Humberton, 1 P. Wms. R. 332 ; Sheffield «.Lord OiTery, 3 
Atk. R. 282 ; Gurnall v. Wood, WiUes R. 211 ; Robinson v. 
Hardcastle, 2 Bro . C.C. 30 ; Loddington v. Kime, 1 Ld. Ravm. 
R. 207 ; Northey v Strange, 1 P. Wms. R. 340 ; Burdet v. 
Hopegood, id, 486 ; Beale v Beale, id 244 ; Wallace -y. Hodg- 
son, 2 Atk. R. 117 ; Basset -y Basset, Atk. R. 203 ; Gulliver 
v. Wicket, 3 Wils. R. 105 ; Doe n. Lancashire, 5 Term R. 49 ; 
Doe v. Clarke, 2 H. Black R. 399 ; Long x. Blackall, 3 Term 
R. 486 ; 7 Term R. 100 ; Harrison v. Harrison, stated from 
register book, 4 Ves. Jr. 'R. 338. 

It is said in 11 Ves. Jr. R. 140, by Baron Macdonald, argu- 
endo, that the rule is otherwise in case of descent, and which is 
strongly implied by our statute as amendatory of the common 
law ; yet, whether we could or not derive the rule from the com- 
mon law, which held it criminal to destroy such a life, we have 
it expressly given by statute, and the minor plaintiff falls clearly 
within it. The same rule was sustained as to devises in New 
York, without a statute. Stedfast v. Nicoll, 3 John. Cas. 18. 
The American law is so summed up by Mr. Hilliard, both by 
decent and limitations. 1 Hilliard on Real Prop,, Cap. 45, p. 
521. See 4 Kent Com. 243. 

It had been held repeatedly by this court that the lands of one 
dying intestate descend to the heir ; and although it is subject 
to the payment of debts, and may afterwards be divested by de- 
cree and sale of the administrator, the heir is nevertheless owner 
and entitled to the rents and profits in the meantime. The ad- 
ministrator, therefore, takes neither an estate, title or interest in 
the reality ; not even so much as to make judgments for debts 
against the estate absolutely binding by privity, as against .the 
heir and the land on an application to sell to pay the debts. 
Stone et al. v. Wood, adm'r, 16 111. R. 177. (a)the administra- 
tor, therefore, takes a power, and not an interest. No argument 
supported by analogy to settled principles, and no authority or 
decision was shown, which would enable an administrator to sub- 

(a) M' Connel et al. vs. Smith, et al. 39 m. R, 282, and cases cited ; also 39 111. B 
405 aud cases cited. Haadbury vi. Doolittle, 38 Id. 203. 


Smith et al. i\ McCounell et al. 

port any possessory or real action, in law or equity, for the re- 
covery or maintenance of possessi on or title ; or to clear up and 
vindicate title from clouds from adverse claims. 

A very forcible argument was offered to show how beneficial 
it might be to so change the law as to allow administrators 
to do so, for the purpose of preventing sacrifices by selling under 
such circumstances of suspicion upon the title, since they have 
power to dispose of the whole fee. The object is a worthy and 
meritorious one, well calculated to promote the interests of both 
creditors and heirs. And had the heir filed his bill to enjoin a 
sale by the administrator at a sacrifice, until he could remove 
such depreciating influences with a bona fide offer, with conven- 
ient speed to do so, a much stronger ground for equitable inter- 
position would have been presented. The law dose not afford 
redress, literally, as broad as its theory and maxims. Every 
possible damnification is not a legal injury. So it was held in 
Burnap ti. Dennis, 3 Scam. R. 478, that where a public sale of 
personalty by an administrator was prevented by threats to pros- 
ecute and litigate with any person who should purchase, no action 
was maitainable. The doctrine of slander of title does not em- 
brace personalty, and administrators cannot maintain such action 
in respect of the reality. I am of opinion that an administrators' 
rights and powers in this respect are no broader than his duties ; 
and they are limited to the sale of the title and estate of the 
intestate and the due administration of the proceeds. 

Decree affirmed. 

Skinner, J. I do not assent to the doctrine that an adminis- 
trator whose duty it may be, for want of personal estate, to sell 
under authority of law the real estate of his intestate to pay 
debts, cannot in equity obtain relief by the removal of adverse 
apparent titles, or by the conversion of an equitable into a legal 
title. This may be, and often is, necessary to avoid sacrifice of 
the estate ; and to deny it, would often defeat the very object of 
the sale — the conversion of the estate at its full value into money 
for the payment of debts. 

I concur in affirming the decree. 

DECEMBER TERM, 1855. 143 

Browning v. The City of Springfield . 

Olr'ER W. Browning, Plaintiff in Error, v. The City of 
Springfield, Defendant in Error. 


An action (or damages resulting from negligence will lie against a municipal 
corporation, if the duty to make repairs is fully declared, and adequate means 
are put within the power of the corporation to perform this duty, (a) 

Browning brought his action in damages against the City of 
Springfield, alleging that it was the duty of the city to keep a 
certain street in repair, which duty had been neglected in con- 
sequence thereof he had fallen and broken his leg. To this ac- 
tion the city interposed a demurrer. The demurrer by consent 
was sustained by Davis, Judge, presiding, at November term, 
1850, of the Sangamon Circuit Court. 

Lincoln and Herndon, for Plaintiff in Error. 

Staurt and Edwards, and W. J. Black, for Defendant in 


ScATES, C. J. The case is one for negligence in not repairing 
the street ; and may be distinguishable from a case for carleess- 
ness, negligence or unskillfulness in the manner of doing work, 
or making repairs. Parties might be liable civilly for private 
damage for the latter, who were not so' liable for the former. 
Corporations like individuals are liable for the negligent, unskill- 
ful acts of their servants and agents, in the performance of their 
work in such manner as to injure the property of others. Sicute- 
re tuo n on alienas laedas, is applicable to all, and should afford 
practical redress against a certain class of injuries to others, 
arising from the manner in which we enjoy and exercise our 
rights over our own property. It is broadly laid down and ap- 
plied in The Mayor, &c., New York v. Bailey, 2 Denio R. 439, 
for the unskillfull and insufiicient manner of building the dam on 
Croton river, for the water-works of the city, though the city 
had a discretion whether the dam should be built. Mc Combs x. 
The Town Council of Akron, 15 Ohio R, 474, held a still 
broader rule and fixed the liability for an injury to a house from 
grading a street, where there was neither negligence or malice. 
The case of Russell er al. 'y. The Men dwelling in the County 
of Devon, 2 Term R. 671, has settled that the inhabitants of a 
county are not liable to a civil action for injuries occasioned by 
want of repairs of a bridge ; although the county was required 

(o) Scimmon et al. vs. the City of Chieago, 25 111. R. 424 ; Clayljurgh vs. the City of 
Chicago, Id. 535; City of Joliet vs. Verley, 35 lU. R. 58 ; City of Bloomington vs . Bay, 
42 m. It. 507 ; City of Chicago vs. Powers, Id. 169 ; City of Chicago vs. Robbins, 3 
Black, (U. S. Supreme Court,) 418. 


Browning «. The City of Springtield. 

to make the repairs. And it was put upon the footing that the 
common law afforded no remedy in such a case. 

This has since been extended by decisions in this county to 
counties, overseers of highways, commissioners of highways, 
and towns, and the case of Russel et al. v. The Men of Devon, 
has been invariably referred to to show there was no civil remedy 
at the common law. Mower v. Leicester, 9 Mass. R. 250 ; Rid- 
dle V. The Proprietors of Locks and Canals on Mar?nmack 
River, 7 Mass R. 1G9 ; Farnum -y. The Town of Concord, 2 
N. Hamp. R. 392 ; Hedges T). The County of Madison, 1 Gill. 
R. 568 ; Bartlett "d. Crozier, 17 John. R. 446 ; Moray ^. The 
Town of Newfane, 8 Barb. S. C. R. 646. 

These decisions are doubtless all correct, but the reason upon 
which they are founded, is not to be found in the case of Russell 
et al. i). The Men of Devon. As a general rule at the common 
law the counties were charged with the duty of repairing high- 
ways and bridges, unless other parishes, boroughs, or corporate 
bodies were liable by prescription or statute. The People ex 
rel. Hoes et al. n. Canal Trustees, 14 111. R. 402. But this 
liability with us is one of imperfect obligation, because the duty 
is not absolute, nor the means of performing it unlimited: The 
county, to a great extent, exercises a discretion in building and 
repairing bridges, and in opening and discontinuing highways. 
Ihedem. Besides a want of perfect and full powers, in counties, 
supervisors and other public officers charged with these duties, 
adequate to raise the necessary means, and a discretion to judge 
of the time, place, manner and amount required, they are cor- 
porations or quasi corporations, and officers involuntarily charged 
with duties appertaining alone to the public ; and exercise sub- 
ordinate ministerial functions in the discharge of fixed and pre- 
scribed duties. They are criminally liable for neglect, by infor- 
mation or indictment, to fine ; and to this only to the extent of 
the means placed under their control. Bartlett -y. Crozier, 17 
John. R. 488 ; The People v. Adsit et al., 2 Hill R. 619 ; Peo- 
ple V. Commissioners of Highways of Hudson, 7 Wend. 474 ; 
Morey v. The Town of Newfane, 8 Barb, S. C. R. 646 ; Bar- 
ker v. Loomis, 6 Hill R. 464 ; Lynn v. Adams, 2 Carter R. 143. 
While this obligation is perfect with respect to the duty pre- 
scribed, and the liability criminally is reciprocal for its breach, 
yet in the sense and view of a private civil remedy by suit for 
damages for its neglect, its obligation is imperfect upon these 
mere public agents or officers, whenever the power and means 
are wanting, and the duty is not clear, specific and complete. I 
speak of non-feasance, for there might be liability for malfea- 
sance, when none would arise civilly for neglect. But this class 
of public agents, and this class of powers, and duties, are not 

DECEMBER TERM, 1855. 145 

Browning v. The City of Springfield. 

to be confounded with another, whether individual or corporate, 
possessing ample and full powers and means, and charged with 
a full, specific and complete duty. Such are liable for injuries 
arising from omissions of duty, and, like individuals, for a care- 
less, negligent and unskillful performance. 

This shows the true distinction between the two classes of 
cases : where the duty is clear, specific and complete, but where 
the means may not be adequate, and those cases where both are 
complete. In the former the obligation is imperfect, — that is, 
there is no civil liability ; in the latter there is a perfect obliga- 
tion and a civil liability for neglect in all cases of special private 

A short review of cases of this latter class- may clear the sub- 
ject of apparent diiGBculty by confounding theni. By immemo- 
rial usage the corporation of Lyme Regis were bound to repair 
a certain creek, for the want of which Turner was. compelled " to 
carry his corn round aboutj" without alleging other special 
damages. Held, that the action would lie ;: " it might be the 
very condition and terms of their creatiojii and charter. The 
Mayor of Lyme v. Turner, Cowp. R. 86. In The Mavor of 
Lyme Regis v. Henley, 1 Bingh. N. C. 222, (27 Eng. C.''L. R. 
366) in the House of Lords, special damages were laid. The 
action was sustained upon the ground that the charter imposed 
the duty of repairing the buildings, banks, sea shores, and all 
other mounds and ditches, the pier-quay or the cob, &c. Cer- 
tain farm rents due from the corporation were remitted ; liberty 
to dig stone, and other means of performing the duties enjoined, 
were conferred upon the corporation. 

Park, J., in delivering the opinion of the Judges, lays down 
certain predicates which test the quei:?tion, and when they all 
exist the civil action will lie : 

First, It must appear that the corporation is under a legal 
obligation to repair the place in question ; 

Second, That such obligation is matter of so general and 
public concern that an indictment would lie against the corpo- 
ration for non-repair ; 

Third, That the place is out of repair ; and lastly,, that thjO" 
plaintiff has sustained some peculiar damages beyond the yest 
of the subjects. 

The doubt arose upon the first and second requisites,. The 
duty to repair arose as a condition of the Charter with the 
privileges and means conferred, and which were accepted.. Upoa^ 
the same principle in Hutson v. The City of New York, 5 
Sandf. R. 296, the city was held liable for damages, occasioned 
by the non-repair of a street ; and in construing the ITSth Sec- 
tion of the general act relating to the city of New York, a 

ILL. REP. — XVII — 9. 


Browning v. The City of Springfield- 
phraseology merely permissive was held to be peremptory in 
imposing the duty o£ repair. The Mayor, &c.. New York, -y. 
Furze, 3 Hill R. 612. 

This was applied to the negligence of persons employed by 
the officers o£ the corporation in repairing sewers, in Llyod -y. 
The Mayor, &c.. City of N York, 1 Seklen R. 369. And again 
in Pennsylvania, in Pittsburgh City T). Grier, 22 Penn. State R. 
63, for allowing pig iron to lie on the wharf, contrary to their 
own ordinances, by means of which a steamer was lost. The 
city of Madison was made liable for damages done a tanyard, 
&c., by the negligence or unskillfulness of agents of the city in 
the construction of a culvert and embankmeut across a certain 
run or brook in the public street. Ross v. The City of Madi- 
son, 1 Carter R. 281. McCombs Ti. Town Council of Akron, 
15 Ohio R. 474, is another and strong instance of liability for 
work done in a negligent manner. In Massachusetts, Maine, 
Vermont and New Hampshire , express provision is made by 
^statute for a recovery of civil damages. Farnum 'y. The Town 
of Concord, 2 N. Hamp. R. 392 ; Brady i\ The City of Lowell, 
3 Cush. R. 124 ; Mower i\ Leicester, 9. Mass. R. 250 ; Cobb -y. 
,Standish, 14 Maine R. 198 ; Johnson v. Whitefield, 18 Maine 
R. 286 ; Rice ?). Montpelier, 19 Vermont R. 474 ; Baxter -y. 
Wenooski Turnpike Co., 22 Vermont R. 121. It is true that 
in this last case, and in Mower -y. Leicester, above, the courts 
say that no action lay at common law, but both vouch, Russell 
■et al. -y. The Men of Devon, which does not support that 
position, but only decides that the action will not lie against 
the inhabitants of the county. The argument of the court in 
"that case shows that the action did not lie, and would not 
against the county itself, had it been a corporation capable of 
being sued. But the reason for it does not appear to be so 
much the Avant of a statutory provision as the existence of 
facts showing the county possessed of powers and means, and 
expressly requiring the specific duty; as was shown against 
the corporation of Lyme Regis, and in the several cases against 
>the city of New York, all of which were cases of mere neglect 
to repair ; as was also the case of the mayor of Lyme Regis. 
The simple deduction which may be drawn from the cases, is, 
that where a specific duty to repair is fully and completely 
enjoined, and full and adequate powers and means are provided 
or put within the power of the person or corporation to provide, 
the obligation is perfect, and liability for neglect is reciprocal 
for the special damages occasioned by it. The same rule is 
adopted in Alabama and Florida. 24 Alab. R. 112 ; 3 Florida 
R. 19. 
Apply those principles to the case before us. We judicially 

DECEMBER TERM, 1855. 147 

Browning r. The City of Springfield. 

notice the public charter of the city and its provsions, and in 
them ve find the duty imposed as a matter of public law, as 
alleged in the declaration. Acts, 1889, p. 9, Art. 5, Sees 9, 10. 
In the same article power is given to levy a tax of one-half 
per cent, per annum on all taxable property in the city, 
(Sec. 1 ;) to license and tax auctioneers and other- dealers, 
(Sec. 17,) hacks, carriages, &c. , (Sec. 18,) tippling- houses, 
(Sec. 21 ;) to impose fines, &c. . (Sec. 34,) with various other 
powers usually granted to cities, including that of condemning 
private property for public use, in opening, widening, or alter- 
ing streets, lanes, avenues and alleys, (Art. 7, Sec. 1,) and a 
power to tax owners of lots for grading and paving sidewalks, 
and lighting streets, &c. (Sec. 6.) 

All public property of the city is vested in the corporation, 
■with power to cause all male inhabitants of twenty-one years to 
work three days on the streets. (Art. 8, Sec. 2.) And in 
addition, the inhabitants are exempted from work on roads 
outside the city limits, and from taxes for that purpose, and 
from all county tax on"^ personalty. The city is required to sup- 
port its paupers, and pay the court and jail expenses of those 
committing crime within the city. 

Here is a specific, full and complete, duty imposed, with 
powers adequate to discharge it, and means that appear ample 
to its accomplishment in labor, taxes, fines, &c. An indictment 
would surely lie for neglect. The non-repair is fully averred, so 
also are the injury and damage. 

Under the strictest rules laid down in this class of cases, this 
seems clearly to fall within them, and fix the liability of defend- 
ant for the injury occasioned by its neglect. 

Nor do I perceive that this isTin any degree in conflict with 
the principles and cases which are put upon the principles of 
the common law in its applieation to public corporations and 
public officers solely charged with the execution of part of the 
details of the law in relation to highways and bridges. Here 
valuable privileges are granted, with ample resources of labor 
taxes and fines, with powers to enforce the labor and payments, 
and exemptions granted from other onerous burthens. 

All these considered together exceed the apparant. powers 
and means given to the corporation of Lyme Regis. And I can 
see no apparent reason for a greater limitations of its liability 
than was fixed in that case under like circumstances. Tha 
duty is also as clear, the power as ample, and the means as 
ample, apparently, as in the cases against the city of New York. 
Why the redress and remidies should not be as ample and 
extensive, both public and private, for the protection of citiaens 


Jennings et al. v. McConnel et al. 

and others against the negligence of this city as those other 
cities mentioned, I am unable to discover. 

With such lights for our guide, and such authorities for our 
sanction, we not only feel authorized but required to afi'ord the 
protection sought. And more especially as we think the decis- 
ions based upon sound sense in accordance with strict morality, 
and keeping pace with the progress of the improvements of the 

Judgment reversed and cause remanded with leave to defend- 
ant to plead. 

Judg77ieni reversed. 

Chakity Jennings et al.. Appellants, n. John L. McConnel 
et al., Appellees. 


In matters of gift or contract between client and attorney, the greatest fairness 
is exacted, and the burtlien of proof, as to the rectitude of the transaction, is 
on the latter ; and upon failure to make proof, equity treats it as one of con- 
structive fraud. 

Wliere real estate is conveyed to an attorney, to save him harmless, as against 
his liability as bail, withouc an intention to sell, an actual sale by the attorney 
will not change the character of the proceeds ; but these will descend to tlie 
heirs, and do not go to the ailministrator. 

A court of equity has general powers over estates, administration, &c. 

A BOND for costs was "prefixed to the bill in this case, which 
was filed the 5th of October, 1854, stating that William A. 
Jennings was prosecuted for larceny in said county, in December, 
1852, and was committed to jail because he could not give the 
bail required of him ; that while in costody, he applied to the 
appellees for professional advice and assistance ; that they ap- 
plied' to the Supreme Court, on habeas corpus, and bail was 
reduced to $500, and that was all the service they rendered 
him, as far as the appellants know ; that in contemplation of 
said McConnel becoming his bail, and to indemnify him as such, 
said Jennings and his wife. (the complainant, said Charity) by an 
absolute deed, for ostensible consideration of $500, conveyed in 
fee simpb, to said McConnel, a tract of land worth from $700 
to $1,000 and, about the same time, to secure to the appellees 
proper compensation for their professional services, placed in 
their hands efiects worth from $200 to $300, and that the land 
and other efi'ects were worth at least $1000 ; that the said Jen- 
nings, with said McConnel as bail, entered into recognizance, 
11th of January, 1853, for Jennings' appearance at March term 

DECEMBER TERM, 1855. 149 

Jennings et al. v. MeConnel et al. 

of Morgan Circuit Court in penalty of $500, which was for- 
feited that scire facias was issued on the same and served on Me- 
Connel, 4th Aug., 1853, returnable to next October term of said 
court ; that on 16th Aug., 1853, before he was damnified as bail, 
and without the knowledge and consent of said Jennings, MeCon- 
nel and wife, at the sacrificing price of $500, cash in hand, sold 
and conveyed the land in fee simple to a purchaser, without 
notice ; that the said Jennings died at New Orleans, intestate, 
21st Aug., 1853, without any other estate than that herein before 
referred to, him surviving his widow and children, complainants, 
sole heir and distributees of his estate ; that he owed no debts 
at the time of his death, and no administration had been granted 
on his estate, and that it was not likely that there would be, 
until the establishment of the rights of complainants, when the 
court could suggest to the County Court of Morgan, any trust- 
worthy person to administer ; that MeConnel, at the October 
term, 1853, of the Circuit Court of Morgan, pleaded, to the 
said scire facias^ the death of said Jennings, and was discharged 
and exonerated of record from his recognizance ; that complain- 
ants, being in circumstances of abject poverty, had applied, 
through one of their solicitors, to MeConnel, for a fair settlement 
and adjustment of premises, and that he refused any settlement ; 
that they were willing that just and liberal allowance should be 
made to the defendants for all that they were entitled to, and 
insist that the defendants, on principles of trust and fair account, 
ought to be holden to respond for any surplus in their hands, or 
in the hands of either of them, estimating the tract of land at 
its full and fair value. 

The bill prayed that, on the hearing of the cause the defend- 
ants should be decreed to pay into court whatever balance they, 
or either of them, justly and equitably might owe in the prem- 
ises, to be disposed of, in due course of administration of the 
estate of the said William A. Jennings, deceased, or for such 
other and further relief as theji may be entitled to. 

English filed answer admitting and denying some of the alle- 
gations of the bill. MeConnel filed motion to dismiss for want 
of proper security for costs, as also a demurrer. Cause was 
submitted at March term. At June term, 1855, motion to dis- 
miss allowed, demurrer sustained and bill dismissed. WoODSON, 
Judge, presided. 

Errors assigned — The sustaining of the demurrer and the 
dismissal of the bill. 

Smith and Morrison, for Appellants. 

M. McCoNNEL, for Appellees. 


Jenniiiffs et al v. McConuel et al. 

ScATES, C. J, The bill set forth facts which give the Court of 
Chancery jurisdiction on two different grounds of subject mat- 
ter. In the relation of client and attorney or solicitor, there 
is that confidence reposed in the latter which gives rise to very 
strong influences over the actions, rights and interests of the 
former, Hence the law, with a wise providence, not only watches 
over all the transactions of parties in this relation, but often 
interposes to declare transactions void, which, between other per- 
sons, would be good. And this is applicable to contracts or gifts 
generally, while the confidential relation continues, and is not 
confined to particular property about which the attorney may 
have been employed. It is not required that a client should 
establish fraud or imposition — the onus of proof — upon showing 
the relation when the contract or gift was made, is upon the 
attorney to show fairness, adequacy and equity ; and upon failure 
to make proof, courts of equity treat the case as one of construct- 
ive fraud. The higest degree of good faith and fairness is 
expected, and exacted. Story Equ. Jurisp. , Sees. 310 to 313 and 
notes, contains a general and correct summary of the law of tins 
relation. The demurrer here admits the employment, as attor- 
ney, the conveyance absolute in fact, but as a security of 
indemnification, and that the liability has been released without 
damage ; and yet the property has been sold in violation of the 
object for which it was conveyed. And now the attorney refuses 
any account. 

Again : a second ground of equity jurisdiction is the general 
power of courts of equity in matters of administration, concurrent 
with the county courts in many respects, and to a larger extent in 
general, as embracing trusts, equitable assets, marshaling assets, 
and especialy in matters regarding the reality, matters of dis- 
covery, fraud, and in the payment of legacies and distribution of 
the surplus. Story Eq. Jurisp., Sees. 530 to 545. 

County courts have ample powers to carry out the ordinary 
matters of administration and settlement, but will find none to 
reach the equitable features of trust in relation to the condition 
of this reality, nor of the equitable relation between the defend- 
ants and the intestate. The parties in interest will find that 
relief to which they are entitled in a court of equity. 

The allegations of this bill show that there was no intention 
of selling this land, or converting it into personality, except upon 
a- contingency, which has not happened ; that was the necessity 
to save defendant, demurrant, harmless as bail. The actual sale, 
contrary to that intention, will not change the character of the 
proceeds. They will be regarded still as reality, and as such 
descend to the heirs, and do not go to the administrator, except 
upon petition and decree for payment of debts. The heir and 

DECEMBER TERM, 1855. 151 

Turley et al. «. The Couuty of Logan. 

widow are therefore the proper persons to sue, and it needs no 
administration to reach this question. 

The court will, upon taking jurisdiction of the transaction, 
investigate and decree upon the whole, embracing the person- 
alty, and, if need be, subject it to a due course of administra- 
tion. The suggestion that there are no debts and no other 
estate, might deserve the serious consideration of this court for 
its interference, were there no other ground for coming here 
instead of the county court for administrations. But the jurisdic- 
tion in this case does not depend upon the general powers of the 
court to overstep an administration, and we waive its discussion 
and determination. The defendant, demurrant, should have 
answered or pleaded to the merits. 

There appears to be a full answer from the other defendant, 
English. But the cause seems to have been dismissed generally, 
on the demurrer or motion, for want of cost bond, without an;^ 
determination or even investigation on the issue tendered by the 
bill and answer. Complainants were not allowed opportunity 
for issue and proofs. 

The decree is therefore erroneous as to both ; for issues should 
have been formed and tried, and, if warranted by the evidence, 
the account directed. 

Decree will be reversed and cause remanded. 

Decree reTiersed. 

George W. Turley et al., Plaintiffs in Error, -y. The County 
OF Logan, Defendant in Error. 


The act ofthe General Assembly, which declares that a county seat shall notbe 
changed, unless upon a petition of a majority ofthe voters, is merely advisory 
and does not deprive the legislature of the "right so to do without petition. 

That a law appears on the statute book, properly signed , is not conclusive that it 
was passed by a constitutional vote; this may be tested by the journals. 

The same legislature whicn passed a law, may correct its journals, atthe same or 
a subsequent session, so as to make the truth appear: and this shows that a law 
received the proper note for its passage. 

Costs must depend not upon the merits of a case as it was presented, but as it ap- 
peared at the final hearing. 

At the session of the General Assembly of 1853, an act passed 
the legislature, for the removal of the seat of justice of Logan 
county, by a vote of the people. 


Turley et al. v. The County of Logan. 

In the fall after, the vote was taken, and resulted in favor of 
the removal. 

The complainants filed their bill to restrain the county officers 
from erecting county buildings at the new location, on the ground 
that, as appeared by the journal, the act had not been read in the 
House of Representatives the full number of times required by 
the constitution ; and so was no law. 

The injunction, in the first instance, was allowed. 

Afterwards and in Feb. 1854, the same legislature met in 
extra session, and, on the recollection of members, and by the 
manuscript minutes of the clerk of the House of Representatives, 
amended its journal, so that it showed the bill, or act, had been 
read the requisite number of times. 

At the ensuing term of court, the defendants filed their 
answer, averring that the bill had in fact been read the requisite 
number of times, and also averring the amendment of the jour- 
nal as aforesaid, and thereon moved the court to dissolve the 

On the hearing of the motion, the defendants proved the 
amendment of the journal as aforesaid. 

The complainants ofi'ered no evidence. The court dissolved 
the injunction. 

Afterwards complainants filed replication, the parties submit- 
ted the case to the court for final hearing without further plead- 
ing or proof, the proof made by the defendants on the motion 
to dissolve, to be considered by the court. 

The court at September term, 1854, Davis, Judge, presiding, 
dismissed the bill, saying nothing about costs. 

Complainants below have brought error. 

J. T. Stuart, for Plaintiffs in Error. 
A. Lincoln, for Defendant in Error. 

ScATES, C. J. The only suggestion of a ground of equitable 
interference is dependent upon the fact stated, that the act of 
Feb. 14, 1853, for the removal of the county seat, &c., was not 
constitutionally enacted, and did not in fact become a law , it 
not having been read on three several days, nor such readings 
dispensed with, as is required by Sec. 23, Article 3, of the Con- 
stitution ; and that in fact it was but once read. The additional 
fact is alleged that there was no petition by the citizens of the 
county, praying for an act for the removal of the county seat, as 
provided by law. Rev. Stat. 1845, p. 411, Chap. 82. 

This latter act is merely directory and advisory, and cannot 
abnegate or abolish the power of subsequent legislatures, who 

DECEMBER TERM, lb55. 153 

Turley et al. v. The County ot Logan. 

may in their discretion legislate without petition, and such leg- 
islation, will be an implied repeal of that law, in every such in- 
stance. The provision of the constitution is mandatory. But 
when the number of readings are shown and on the same day, a 
strong 2^r\di ]jrima facie implication arises, that the legislature 
deemed it expedient to dispense with the rule fixing several 
days for the several readings. 

The signatures of the speakers and i^overnors are presumptive 
evidence of the passage of the law. The journals should show 
the readings, and the passage of the laAV by a constitutional 
vote. The printed statute book is not conclusive of the fact. 
The journals may be examined. Spangler t). Jacoby, 14 111. R. 
297. (a) 

But while the absence of facts in the journals may rebut 
the presumptions raised by the signatures of the proper ofiicers, 
and the publication of the act as a law, still we cannot doubt 
the power of the same legislature, at the same, or a subsequent 
session, to correct its own journals, by amendments which show 
the true facts as they actually occurred, when they are satisfied 
that by neglect or design the truth has been omitted, or sup- 

This was done at the second session of the same Greneral As- 
sembly, and the journal was made to conform to the facts as 
shown by the original minutes of the clerk of the House. 

The plaintifi's filed their bill upon the prima facie case pre- 
sented by the absence of the fact in the journal. We cannot how- 
ever, dispose of the costs — which is really the only question left 
in the record, a subsequent act of the legislature having settled 
the main ground — by the apparent, but must decree them upon 
the true ground made apparent at the final hearing. 

In a recent case before the Supreme Court of Missouri, on a 
mandamus to the Governor, the question involved the passage of 
a law in relation to the Pacific Railroad of that State, and in 
which the court refused to look to the journals, but received the 
signatures of the proper officers, and the publication of the act 
as conclusive. 

We have no doubt of the correctness of this opinion under 
their constitution and upon general principle, but the provision 
of our constitution is special, and may no more be disregarded, 
than any other provision in it, restrictive of legislative power. 

Decree affirmed with costs. 

Skinner, J. I do not deem it necessary upon this record to 
decide upon the efi"ect upon acts of the General Assembly, duly 

{a) M'Connel et al. vs. Smith et al. 39 HI, K. 2S2, and cases cited ;also 39 111. R. 405, 
and cases cited. Handbury vs. Doolittle, 38 Id. 203. 


Phillips et al. v. Cofl'ee. 

authenticated by the signatures of the presiding officers of the 
respeetive houses and the approval of the Governor, of the ab- 
sence of evidence in the journal as of their regulai^ passage ; and 
upon this point I reserve my opinion. 

Decree ajjirmed. 

Edward M. Phillips et al.^ Appellants, ?;. Daniel F. Coffee, 



A purchaser at sheriff's sale, who is not a party to the proceedings, having a 
good deed, will not be defeated in his title by any defect or irregularity ; he 
relies upon the judgment, levy and deed ; all other questions are between the 
parties to the judgment and officer. 

Such a purchaser has nothing to do with the return of the officer to the execiition, 

A misrecital of the judgment in the deed will not destroy the title. 

A stranger to the proceedings cannot collaterally question the regularity of them. 

"Where an instrument made by a corporation is duly executed by one having 
authority, the seal affixed will oe presumed to be the proper seal, unless the 
contrary is shown, 

Declaration in ejectment by Appellee tiersus Appellants. 
Plea, not guilty. 

September term, 1855 : tried before a jury on said issue. 
Verdict for appellee : — that he is owner in fee of S. E. 10 acres 
oe N. E. S. W. 26, Town. 4 S., R. 3 W., in Pike county, Illi- 
nois, part of premises described in declaration ; that appellants 
are guilty of unlawfully, &c. Moaon for new trial made, on 
account of admission of improper testimony, and overruled. 
Bill of exceptions taken ; appeal prayed for and perfected. 

Bill of exceptions shows, that Nathan Phillips, on the 29th 
January, 1833, entered at U. S. land office at Quincv, N. E. 
S. W. 26, Town. 4 S.,3W. 

Appellee then offered in evidence a certified copy of a record 
of a judgment in the Morgan Circuit Court, in which the State 
Bank of Illinois was plaintiff, and Andrew Phillips, Ezra F. 
Benson, Nathan Phillips and Thomas M. Phillips were defend- 

Judgment rendered in said cause versus Nathan Phillips, at 
March term, 1840, for two hundred and forty-nine dollars and 
eight cents and costs, and sci.fa. for the other defendants. 

Also, certified copy of an execution issued from said Morf 
gan Circuit Court to the sheriff of Pike, dated 10th day o- 

DECEMBER TERM, 1855. 155 

Phillips et al. v. Coffee. 

April, 1840, commanding slieriiF to make $249.08 damages, and 
$7.12 costs, on which is the following return: 

"By virtue of this execution, I did levy on the following desci'ibed real estate, 
viz. : the north-east qr. of the south-vvest of Sec. 26, 4 S. ,3 W.,and pt. of the E, 
half of the north-west qr. of Sec. 26, 4 S., 3 W., containing in all one hundred 
and eight acres, more or less. 

"By virtue of this execution I offered the above described property, but did 
not sell for want of bidders, on the sixth dav of June, 1840. 

JAMES M. SEELY, Sheriff. 

By S. E Love, Deputy. / 

I this day return this execution satisfied in full, by sale of the above described 
property, this July 11, 1840. 

JAIMES M. SEELY, Sheriff. 
By S. E. Love, Deputy. 

Also, a sheriff's deed to State Bank of Illinois, dated 21st 
July, 1842, for above premises, reciting a judgment of Circuit 
Court of Morgan county, in favor said Bank ve7'sus Nathan Phil- 
lips, for two hundred and forty-nine dollars and eighteen cents, 
at March term, 1840. 

Also, a deed of assignment from State Bank to Manly, 
Ridgely and Calhoun, dated 31st October, 1848, of all lands 
and lots, &c., belonging to the bank. Deed is signed Thomas 
Mather, President, and purports to be under seal of bank. 

The deed is not acknowledged, and no proof was made that 
the seal was the seal of the bank. The signature of Mather 
was proved, and it was also proved that he was president of 
the bank at date of deed. 

Also, a certificate of A. Starne, Secretary of State, containing 
what purports to be a copy of a vote of directors of said bank, 
directing the president and cashier to signify the acceptance of 
the bank of act of legislature of March, 1847. 

Also, a certificate of Secretary of State, of what purports to 
be the appointment, by the Governor, of Ridgely, Manly and 
Calhoun, as trustees to charge of assets of bank. 

Appellant then offered in evidence a deed from trustees of 
bank to Charles Hamilton for the land aforesaid, and deed from 
Charles Hamilton to appellee for said land. 

And also proved, that at time of commencement of this suit 
appellants were in possession of the premises described in the 

At the time of offering each and all said paper titles by appel- 
lee, appellants objected to their introduction. The court over- 
ruled the objections, permitting each of them to be read, and 
appellants at the time of said rulings excepted. 

The first four errors assigned are : that the court permitted 
improper testimony to go to the jury to prove title in appellee. 


Phillips etal. ®. Coffee. 

The last error assigned, is the refusal to grant a new trial, on 
the ground of the admission of improper evidence to prove title. 

Wm. a. and J. Grimshaw, for Appellants. 

C. L. HiGBEE and M. Hay, for Appellee. 

ScATES, C. J. The several deeds and other evidences of title 
were objected to, and those objections are presented for our 
revision, not as involving the power, but the regularity and 
sufficiency of the proof of the acts of the officers, bank, and 

The judgment, execution, levy and sale, all appear to have 
been regular, and sufficiently, and strictly in pursuance of the 
law, (Rev. Stat. 1833, p. 372, Sec. 8,) and a deed made and 
acknowledged, [Sec. 1-4, p. 375 ;] and which deed so made is 
made evidence "that the provisions of the law in relation to sales 
of lands upon execution were complied with until the contrary be 
shown," and " shall be considered as conveying to the grantee 
therein named all the title, estate and interest of the defend- 
ant" in the same, in lands sold, of what nature soever the 
same be. Act 1841, p. 171, Sec. 7. When plaintiff in execu- 
tion is the purchaser he shall be chargeable with full notice, 
and accountable for all irregularities. Harrison et al. v. Doe 
ex dera. Rapp, 2 Blackf. R. 1. 

But there are none here alleged. 

It is alleged that there is a variance between the judgment 
and execution read in evidence and that recited in the deed ; 
and that the return- on the execution does not show the name of 
the purchaser ; and for which last reason the sale is void under 
the statute of frauds, for want of a complete memorandum in 
writing of the bargain and sale. 

The variance was a clerical mistake, and amendable, and a 
stranger to the record shall not be allowed collaterally to ques- 
tion it. Bissel Ti. Kip, 5 John. R. 100 ; Laroche v. Wash- 
brough et al., 2 Term R. 737 ; Jackson?). Walker, 4 Wend. R. 
464 ; Jackson ex dem. Martin et al. v. Pratt, 10 John. R. 381. 
And in this last case the court permitted parol evidence to 
identify the premises sold and conveyed by the sheriff's deed, 
they not being described in the sheriff's return upon the execu- 
tion, declaring such irregularity did not affect the legality of 
the sale. So under our statute a non-compliance with the 
statute does not make void the sale, but subjects the officer to a 
forfeiture. Rev. Stat. 1833, p. 372, Sec. 8, Stewart z;. Croes 
et al., 5 Gil, R. 442 ; 2 Carter la. R. 465. Where, as here, 
the purchaser has a good deed, his title cannot be defeated by a 

DECEMBER TERM, 1855. 157 

Phillips et al. v. Coffee. 

defective return, nor even if there be no return at all. The 
purchaser depends upon the judgment, («)the levy and the deed. 
All other questions are between the parties to the judgment and 
the officer. The statute of frauds may not be set up by them 
or strangers, For that would be a question between the officer 
and the purchaser. Wheaton v. Sexton, 4 Wheat. R. 503 ; 
Doe v. Heath, 7 Blackf. R. 154 ; Hopping x. Burnam, 2 
Greene Iowa R. 42 ; Humphreys v. Berson, 1 Greene Iowa 
R. 199, 215. A want of a return of a levy has been held not 
to vitiate. (6) Evans v. Davis, &c., SB. Monroe R. 346 ; Mclntire 
v. Durham, 7 Iredell R. 152. 

Neither would a misrecital of the judgment in the deed 
vitiate or destroy the title, (c) 10 John. R. 381 ; Jackson ex dem. 
Hill V. Streeter, 5 Cow. R. 529 ; Jackson ex dem. Wetherell et 
al. ^. Jones, 9 Cow. R. 182. 

This court has held that irregularities do not avoid the sale, 
and that strangers may not interpose collaterally objections 
which can alone, as between the parties, be made in a direct 
proceeding by motion or writ of error. Swiggart et al. v. Har- 
ber, 3 Scam. R. 364; Rigg -y. Cook, 4 Gil. R. 336. {d) 

And in Voorhees.t^. The Bank of the U. States, 10 Pet. R. 
478, where one had bid off the property and the deed was made 
to another, that is a matter entirely between those persons, and 
the defendant in execution has nothing to do with it for his 
right is extinguished by the sale. Here, as in that case, taking 
the levy, return and deed together, and a sufficient case is made 
out under the statute of frauds, and the judgment debtor could 
have no right to complain, even had he the right thus collaterally 
to object, much less can these plaintiffs who have shown no title 
and no connection with that suit, (e) 

The remaining question is to the admissibility of the deed of 
assignment by the bank to the trustees, and for want of proof 
that the seal thereto was the seal of the bank. This is unneces- 
sary here. Its execution by the president of the bank is shown, 
and the seal affixed affords prima facie evidence that it is the 
seal of the bank. And this rule does not dispense with evidence 
that the seal is the seal of the corporation, but adopts as a rule 
of prima facie evidence that when an instrument is duly exe- 
cuted by one having authority, that the seal he attaches is the 
seal of the corporation, until it is impeached and shown other- 
wise. Ang. and Ames on Corp., pp. 192-4, Sees. 6, 7, and 
references ; Lovett n. Steam Saw Mill Asso'n et al., 6 Paige 
R. 54 ; Mill Dam Foundery d. Hovey, 21 Pick. R. 417 ; Flint 

(a) Douglas vi. Whiting, 38 111. R. 362 ; Pickets v». Hartsock, 15111. R. 279 ; Dur 
ham vi. Heaton, 28 Id. 272. 

(6) Bryan vs. Dana ; Gil. R. 343. 

(c) Loomis M. Riley, 24 111. R. 309 ; Hays vs. Bernard, 38 Dl. R. 303. 

(d) McCormick vz. Wheeler, 36 111. R . 119. 
(ej Ante. 50 and notes. 


(Jamiady v. Tlie People. 

t). Clinton Co. and Trustee, 12 N. Hamp. R. 430 ; Reynolds' 
heirs v. The Trustees of Glasgow Academy, 6 Dana R. 37 ; 
Corrigan v. The Trenton Delaware Falls Co., 1 Halsted R. 
52 ; Johnson et al. v. Bush et al., 3 Barb. Ch. R. 207. And it 
is held in some of the above eases that when the seal is proven 
to be the seal of the corporation, and to have been set to the 
deed by the agent, it is p^'hna facie evidence of his authority to 
do the act. 

The ancient strictness of proof of the seal being the device 
and seal adopted by the corporation, has been greatly relaxed. 
And this is indeed indispensable under the very great multiplica- 
tion of corporations of a public and private nature, which have 
become the most desirable and convenient mode of association 
of capital for the varied transactions in manufacturing, carrying, 
and trading. It would in most instances be difficult, and in a 
great many impossible, for persons with whom they deal, stran- 
gers to the proceedings of corporate boards, to prove that a 
particular device had been adopted by them as a seal. More 
particularly in such cases as those in Kentucky, where a scroll 
with ink is allowed as it is with us. It might be impossible to 
prove this to be the device adopted otherwise than by its use, 
and its being affixed as such by a proper officer or agent. This 
should be received as prima facie evidence, and the company 
required to answer and rebut it. I know that stricter proof is 
required in England, and in some of the States. See 21 Eng, 
C. L. R. 447 ; 7 Serg. and Rawl. R. 312 ; 2 Sand. Ch. R. 257 ; 
1 Mo. R. 460 (646). 

It is needless to multiply authorities, nor do I propose to 
discuss the rule or the soundness of the rule of relaxation in 
the proof. Whatever of danger there may be in it to corpora- 
tions is no greater than that to others in the strict rule, in the 
multiplied transactions of the present day. Similar modifica- 
tions have been made in our notions of the very reason itself 
for a scaling in modern times when almost all can write. 

We can, under this view, find no valid objection to any of the 
proof offered. 

Judgment affirmed. 

James Cannady, Plaintiff in Error, v. The People, Defend- 
ant in Error. 


In an indictment for selling whisky in a less quantity than one gallon, the name 
of the purchaser, or an averment that he was unknown is not necessary. 

The general averment of an illegal sale is sufBcieut; the kind of liquor sold need 
not be specified. 

DECEI^IBER TERM, 1855. 159 

Caunady v. The People. 

When statutes create oflences. indictments should contain proper and sufficient 
averments to show a violation of the law, and to enable the aoeusfHl to meet the 
charge ; beyond this, particularity of speeiticntion may furnish a means of eva- 
ding the law, rather than defending against an accusation. 

The plaintiff in error was indicted in selling liquor without a 
license. He was tried at August term, 1854, of the Green Cir- 
cuit Court, Woodson, Judge, presiding, and found guilty, and 
fined ten dollars. A motion in arrest, was overruled. 

The indictment charges that Cannady, not having a legal 
license to keep a grocei-y, did then and there unlawfully sell 
spirituos liquor, to wit : whisky, by a less quantity than one 
gallon, contrary to the form of the statute, &c. 

Palmer and Pitman, for Plaintiff in Error. 

C. Epler, District Attorney, for The People. 

ScATES, C. J. The only question is whether an indictment for 
selling whisky in a less quantity than one gallon, without a legal 
license to keep a grocery, is substantially defective for want of the 
name of the purchaser, or an allegation that he was unknown. 

We think not. The general averment of an illegal sale, is in 
this respect sufficient, and this we think warranted, not only by 
the authorities, but the good sense of requiring only substantial 
facts necessary to enable the plaintiff to know the charge, and to 
prepare his defence. 

The existing provision on the subject, has fixed the minimum 
quantity to be sold without license at one gallon. Sullivan v. 
The People, 15 111. R. 233; Bennett v. The People, 16 111. R. 
160. And kind need not be specified. Zarresseller -y. The Peo- 
ple, 17 111. R. 101. Where statutes create offences, indictments 
should contain proper and sufficient averments to show a viola- 
tion of the law. An indictment charging embezzlement by an 
agent 3f a co-partnership, is not sufficient under a statute for the 
punishment of embezzlement by the agent of a corporation. 
Hamuel v. State of Missouri, 5 Mo. R. 260. Sounder the act 
defining a riot to be an unlawful assault, an indictment was held 
insufficient which charged a forcible and violent beating, &c. 
McWaters et al v. State of Missouri, 10 Mo. R. 168 — and the 
indictment must state all the circumstances Avhich constitute 
the definition of the offence in the act, so as to bring the de- 
fendant precisely within it. Id. 169; 9 Mo. R. 287. Rutin 
The State v. Bray, 1 Mo. R. 180, it was held not to be a part 
of the definition, although used in the statute in relation to 
assault and battery. 

The general rule in such cases, as to certainty, is recognized 


Cauiiady e. The People. 

in the Commonwealth t\ Thurlow,, 24 Pick. R. 381. Bu 
another distinction was taken in j|_relation to necessary aver- 
ments. In the Massachusetts statutes there are two offences de- 
fined, and different penalties imposed. One against common 
sellers, or retailers, and the other against persons guilty of a 
single act, without a license. AMiere the indictment charged 
the latter offence, the court held it necessary to charge the 
time, place, and to a person named, or that the name was un- 
known. Id. BT9. But in an indictment against a cowzwon sel- 
ler, &c., it was unnecessary to name the person. Common- 
wealth 11. Odlin, 53 Pick. R. 279 ; nor the kind of 1 quor, as 
the kinds were merely put in the statute " by way of instance " 
of the larger term, '' spirituous liquors, " " as to give efficiency 
to the rule of construction, ejusdem generis, and qualify those 
more general words. " To the same effect as to averments of the 
kind of liquor and persons to whom sold , is the case of State v. 
Munger, 15 Vermont R. 291, and the Commonwealth v. Dove, 
2 Ya. Cases 26, as to the name of the persons purchasing. In 
The People v. Adams, 17 Wend. R. 476, the court held it un- 
necessary to allege the name of the person purchasing — the offence 
Consists in the act of selling, and therefore the desig-nation of the 
person is no way maLerial(a)And as a question of pleading, certainty 
to a common intent does not require it. The precedents all ap- 
pear the other wav, as set forth in 2 Burns' Justice 185, et seq. 
4 Wentworth 504"; 1 Burns 23, 24 ; 2 Chit. Crim. Law 484. 

The rule is abundantly sustained by the American decisions as 
collected: Wharton's Crim. Law 815 to 820 ; though a contrary 
rule is adopted in some of the states. 

The like is held in Virginia for selling to slaves, that the 
name of the owner need not be averred. Commonwealth v. 
Smith, 1 Gratt. R. 553 ; though it is ruled otherwise in Com- 
monwealth v. Cook, 18 B. Monroe 149, because the defendant 
may prove permission from the owners to sell, and should be 
advised who he should call to establish the license — and .a very 
good reason for a distinction. 

These great niceties, and strictness in pleading, should only be 
countenanced and supported, when it is apparent that the de- 
fendant may be surprised on the trial, or unable to meet the 
charge or make preparation for his defence, for want of greater 
ceitainty or particularity in the charge. 

Beyond this, it tends more to the evasion than the investiga- 
tion of the charge, and becomes rather a means of escaping pun- 
ishment for crime, than of defence the accusation. 

Judgment affirmed. 

Skinner, Justice, dissented. 

(a) Rice m. People, 33 HI. R. 435. 

DECEMBER TERM, 1855. 161 

In tlie matter of James "Welsh. 

In the matter of James Welsh, on Petition for Habeas 


The constitution does not restrict the power of the legislature as to the number of 
justices of the peace which may be created. That body may create as many 
districts lor and prescribe the jurisdiction of, justices of the peace as public 
policy requires, and without making their jurisdiction uniform. (a) 

The Recorder's Court of the city of Chicago is a constitutional tribunal, not re- 
pealed 01 affected hy the Act of 27th February, 1854. providing for the better 
government of towns and cities. 

This application for an habeas corpus was made to the court, 
in session at Mount Vernon, and the writ, by consent of the 
petitioner, was made returnable to the court in the second divi- 

The petition stated that Welsh and two others had been con- 
victed, in the Recorder's Court of the city of Chicago, of larceny, 
and sentenced to the penitentiary for three years, from the 26th 
of September, 1855, and that he was now detained under such 
sentence and judgment. Upon the issuing of the writ, the war- 
den of the penitentiary returned the facts in the case and sub- 
mitted himself to the decision and order of the court. Welsh 
was remanded to the custody of the warden of the penitentiary, 
to serve out the residue of the time in conformity to the sentence. 

W. T. Burgess, for the Application. 

T. HoYNE, Contra. ' . 

Caton, J. The questions presented in this case demanded, 
and have received, the most attentive consideration of this court. 
They do not in the least involve the question of the guilt or inno- 
cence of the prisoner, but relate entirely to the authority of the 
court before which he was tried. 

The constitutionality of the Recorder's Court was sustained by 
this court, in the case of Perry v. The People, 14 111. 497. It 
was there determined that that court luas an inferior local court 
of civil and criminal jurisdiction, which the legislature was au- 
thorized to establish within the cities of the State, by the first 
section of the fifth article of the constitution-, and that the power 
there conierred might be well exercised by establishing a single 
court in a single city of the State :. but that when the legislature 
undertook to exercise the same power in reference to other cities, 
by establishing courts in those cities, care would be taken to 
make this court and the courts thus to be created in other cities 
conform to each other in regard to their organization and juris- 
diction; for that section of the constitution says that " such 

(o) See People sv. Ev ans, 18 111. R. 361and notes, and post 169. 
ILL.REP. — XVn — 10 


In the matter of James Welsh. 

courts shall have a uniform organization and jurisdiction in such 
cities," By the at3t of the 27t.h February, 1854, entitled " An 
act for the better government of towns and cities, and to amend 
the charters thereof," it is provided that, in each town or city 
in the State, the population of which shall not exceed six thou- 
sand, an officer shall be elected, styled " police magistrate ;" and 
in each city exceeding six thousand, and not exceeding twelve 
thousand, two such officers shall be elected ; and in cities exceed- 
ing twelve thousand, three are to be elected. These magis- 
trfbtes were to be elected at the next regular town or city elec- 
tion, and every four years thereafter. The third section of the 
act provides that " said police magistrates, when elected, shall 
be commissioned and qualified in the same manner as other jus- 
tices of the peace are and shall have in their respective counties 
the same jurisdiction, powers and emoluments as other justices 
of the peace in this State ; and they shall also have jurisdictions 
in all cases arising under the ordinances of their respective towns 
and cities, and for breaches thereof, where the amount claimed 
does not exceed one hundred dollars," &c. The same section 
also provides for change of venue from one of these magis- 
trates to another, in places where there are more than one ; and 
in places where there is but one, then to the nearest justice of 
the peace, in the same manner as changes of venue are taken 
from one justice of the peace to another. The fourth section 
provides that the rules of practice before these magistrates shall 
be the same as before justices of the peace, except where it 
shall be changed by the charters of their respective towns or 
cities. The fifth section of the act provides that the city mar- 
shals, police constables and constables of the county, may serve 
the process issued by such magistrates. And the sixth section 
of the act provides that appeals shall be taken from their deci- 
sions, in the same manner as from the decisions of justices of the 

The passage of this act, it is insisted, was the exercise of the 
power conferred upon the legislature by the first section of the 
fifth article of the constitution and established a class of inferior 
local courts in the several cities of the State, of a different organ- 
ization and jurisdiction from the Recorder's Court of Chicago, 
which had been previously established under the same provision 
of the constitution ; and as both cannot exist together under the 
constitution, it is insisted that the last ace, by implication, 
repealed the former law establishing the Recorder's Court. If 
the officers created by the last act are anything more than justices 
of the peace, — if the courts thereby created are not justices' 
courts, then the legislature had no authority to pass the act, 
except by virtue of the clause referred to ; and we should be 


In matter of James Welsh. 

obliged to hold, either that the last act is void, or that the for- 
mer has ceased to operate. 

One thing is very certain, that the legislature did not intend 
to repeal and did not suppose they were repealing the Re- 
corder's Court out of existence. Not only is there not the least 
intimation on the face of this law of an intention to supersede 
the Recorder's Court, but on the very next day the same legis- 
lature passed a law in terms amending the " act to establish the 
Recorder's court of the city of Chicago," thereby recognizing its 
continued existence in the most authoritative and solemn form 
possible, as much so as if they had said that they did not intend 
and did not thereby repeal the law establishing the Recorder's 
Court. The legislature also on the same 28th day of February, 
passed another law, the seventh section of which makes provision 
for the punishment of criminals convicted in this same Recorder's 
Court. (Session Laws 1854, page 218.) I repeat, then, that 
it is v^ery certain that there was no intention on the part of the 
legislature to repeal the former law, and if they did so, they did 
it against their express will — and yet if they intended to estab- 
lish another city court under the clause of the constitution above 
referred to, of a different organization and jurisdiction from the 
Recorder's Court, they must have intended to repeal that court 
out of existence, or to have violated the constitution, or else 
they were ignorant of it. These last suppositions are totally 
inadmissible, and, as the first is plainly contradicted by their 
legislation on the subject, we are forced to the conclusion 
that the. legislature created these police magistrates in the ex- 
ercise of a power conferred by some other part of the constitu- 
tion. That can only be found in their authority to create jus- 
tices of the peace. As to these officers there is no limit placed 
by the constitution upon legislative power. They may create as 
many as they please, in such districts as they please, and prescribe 
their jurisdiction as they please, nor is it necesasry that all the jusr 
tices of the peace of the State should have a uniform jurisdiction, 
as in the case of the city court. There is nothing in the constitu- 
tion to prohibit the legislature from giving to one justice of a 
town exclusive jurisdiction in criminal matters, another of civil 
actions ex delicto^ and another of actions ex contractu. Here, 
at least, the constitution seems to presume that the legislature 
may be entrusted with some, though it be but a very limited 
discretion. We are thus led to the conclusion that the legisla- 
ture passed the law with the intention to exercise their power 
to create justices of the peace, and that hence they supposed that 
they were creating nothing more than justices of the peace. They 
certainly intended to do nothing else unless they intended to 
transcend their constitutional powers. Now, are these magis- 


In the matter of James Welsh. 

trates anything but justices of the peace ? Did the legislature 
create a greater or a less magistrate than they intended ":* Most 
clearly not. They have all the characteristics of a justice of 
the peace. They Ave elected and commissioned in the same way, 
have the same tenure of office and the same jurisdiction ; they 
have the same practice and rules of proceedings, and their judg- 
ments have the same force and are appealed from in the same 
way. But they are not called justices of the peace. They are 
designated as police magistrates. Can this, in a constitutional 
point of view, make any substantial difference ? Suppose the 
statnte had said"" there shall be elected an officer in each of the 
towns and cities of this State," &c., and in all other respects 
provided as it now does, would any one doubt that such officer 
would have been nothing more or less than a justice of the 
peace ? Or, suppose he had been called a yjiagistrafe instead of 
an officer, would that have made any difference? And if not, 
does the prefixing of the •wortl police to the magistrate make a 
constitutional difference in the character of the officer created? 
Is it true that the constitutional ty of a law has to be determined 
by a mere name, which may have been accidently or intention- 
ally used while the substance of the thing is manifest ? Shall 
we find ourselves stickling about a name when the meaning of 
the legislature is perfectly obvious, and the results undeniably 
legitimate? It would hardly comport with the dignity and 
Bolemnity expected of a tribunal of the last resort, when deliber- 
ating upon grave constitutional questions of the most mo- 
mentus public importance, to fasten upon an unsubstantial cog- 
nomen, and let go the entire substance of the statute upon 
which we are called to adjudicate. If these magistrates had 
been called justices of the peace, no one would ever have thought 
of raising the questien that they were justices of the peace in 
fact as well as in name. But there is in realty nothing in the 
name incompatible with that of justices of the peace. The word 
magistrate is but a generic term, embracing within its meaning 
justices of the peace as well as other civil officers, and there 
can be no constitutional objection to the legislature using this 
generic term, instead of the specific designation of the officer 
which they Avere creating. It is the substance and the life of 
the law we should regard when determining upon its legal effect. 
Nor is the qualifying term -police, which is prefixed to the word 
magistrate, objectionable in a constitutional point of view. As 
before stated, it was competent for the leg islature to designate 
anv one or more of the justices of the peace in any town or city 
who should have exclusive jurisdiction of complaints for violat- 
ing the ordinances of the town or city, and had a law making 
6cuh provision prefixed the adjective police to the magistrate 

DECEMBER TERM, 1855. 165 

In the matter of James Welsh. 

thus designated, it could hardly be contended, with a show of 
reason, that he would thereby have ceased to be a justice of the 
peace. Of this we have a striking example in the law passed 
under the constitution of 1818, creating probate justices of the 
peace. Under that constitution no judical officers except jus- 
tices of the peace could be elected by the people, and yet this 
law created jirohato, justices of the peace, which were so called, 
as it was said in the act, "by way of eminence and distinction," 
and vested in them, in preference to all other justices of the 
peace, exclusive jurisdiction of all probate matters and these 
officers were made elective by the people, and they exercised 
that jurisdiction for many years, and no question was ever raised 
of the constitutionality of the law. 

But if a legislative designation could be supposed necessary 
to make these magistrates justices of the peace, even that is not 
wanting in the law now under consideration, for it provides that 
they "shall have in their respective counties, the same jurisdic- 
tion, powers and emoluments as other justices of the peace in 
this State." Other provisions of this law might be referred to 
in support of this view, as that which provides for a change of 
venue from these magistrates to other justices of the peace, which 
applies as well to suits brought for the violations of ordinances 
as to other cases, but we deem it unnecessary. We have no 
hesitation in saying that this law was passed, not in the exercise 
of the poAver conferred upon the legislature to establish inferior 
local courts of civil and criminal jurisdiction in the cities of this 
State, but under the power conferred upon them to create justices 
of the peace, and that it did not repeal by implication or super- 
sede the law establishing the Recorder's Court of the city of 

There is but one other act to which it is necessary to advert, 
and that is the one of the sixth of February, 1855, by which the 
Court of Common Pleas of the city of Cairo was provided for. 
This act was no doubt passed in the exercise of the power con- 
ferred upon the legislature to establish inferior local courts ia 
the cities, but the existence of that court is by no means incon- 
sistent with the continuance of the Recorder's Court of the city 
of Chicago, and it was distinctly admitted on the argument that 
it was not thereby abolished, but that by force of the constitu- 
tion the jurisdiction of the Recorder's Court may be extended so 
as to make it uniform with that of the Cairo court. But it is 
unnecessary to examine that question, for we are now dealing 
alone with the question of repeal, which it is not pretended was 
effected by this last act. 

We are of opinion that the prisoner was convicted and sen- 
tenced by a court of competent jurisdiction, and that he must be 


Armstrong «. Mock. 

remanded to the custody of the warden of the penitentiary in 
execution of that sentence. 

Skinner, Justice. I concur in the judgment of the court re- 
manding the prisoner. 

Application denied. 

Jacob Armstrong, Plaintiff in Error, v. R. A. Mock 
Defendant in Error. 


Proceeding to trial without a formal issue, is, after verdict, treated as a waiver of 

the plea or issue. 
Exceptions to the refusal of the court to give instructions, must be taken at the 

tiial,and this must be shown by the record, or this court will not examine them. 

This was an action of replevin^ commenced by Mock vs. Arm- 
strong, in the Circuit Court of Mfenard county, at the May term 
thereof, 1855, for one hundred and fort3^-one head of cattle. 
The affidavit for the replevin and the declaration are in the usual 
form of taking and detention, and to the declaration, the defen- 
dant filed several pleas, to- wit : that defendant did not take — 
that defendant did not detain — property out of plaintiff, and in 
defendant — property in defendant alone. There was issue proved 
on three of these pleas, but not to the fourth one. A jury was 
called, and found for the plaintiff. The defendant made a motion 
for a new trial, which was overruled by the court. 

This cause was heard before Woodson, Judge, at May term, 
1855, of the Menard Circuit Court. 

Lincoln and Herndon, for Plaintiff in Error. 

Stuart and Edwards, and A. Brooks, for Defendant in Error. 

ScATES, C. J. The parties went to trial without a formal 
joinder of issue on fourth plea. The substance of the plea 
was property in defendant below, plaintiff here. The third plea 
put the same fact in issue. Proceeding to trial without a formal 
issue, is, after verdict, treated fts a waiver either of the issue or 
the plea ; and verdict will not be set aside, if there were no 
plea. Brazzle et al. -y. Usher, Breese R. 14 ;(a)Ross et al. -y. 
Reddick, 1 Scam. R. 74. It is based upon the supposition, and 
doubtless founded in truth, that the real merits in controversy 

(o) Kelsy vs. Lamb, 21 \\\. R. 559 ; Voltz vi. Harris, 40 Id. 158. 

DECEMBER TERM, 1855. 167 

The People ex rel. Akin et al v. Matteson et al. 

have been tried and determined. But this reason would not 
apply, and the rule is otherwise in cases of immaterial issues. 
Woods T). Hynes, 1 Scam. K. 103. 

The instructions given at the instance of plaintiff below, 
although excepted to at the time, are not assigned for error. 
Those asked by defendant below, have been assigned for error, 
but no exception to their refusal was taken at the trial. 

The court have repeatedly held, that the exception must be 
taken on the trial, and that fact must appear on the face of the 
record. 3 Scam. R. 17, 23, 63 ; 5 Gil. R. 453 ; 11 111. R. 72 ; 
1 Scam. R. 252. 

No question is, therefore, presented for revision in this record. 

Judgment affirmed. 

The People of the State of Illinois ex relatione Andrew 
Akin, John King, jr., and Ephraevi Ward, ti. Joel A. 
Matteson, G-overnor of the State of Illinois, and Alex- 
ander Starne, Secretary of State. 


In contested elections, the intention of the voters in casting their ballots should 
control ; and effect must be given to that intention. 

In this State. •' police magistrates" and ' ' police justice' ' are equally within the 
meaning of the constitution, and the intention of the law, passed for the better 
govermentof towns and cities, approved February 28th, 1854 ; andvotes given 
for persons to till those olBces, undereitherdesignation, should be counted and 
returned in favor of the persons for whom they may have been cast. 

The right of a party to exercise an office, should be determined by quo warranto. 


This was an application for a peremptory mandamus, founded 
upon the following agreed case : 

That at a regular election for city officers, held in the city of 
Chicago, in the county of Cook, in the State of Illinois, on the 
6th day of March ( first Tuesday ), A. D. 1855, an election was 
also held for the purpose of electing three police magistrates, 
under and by virtue of the provisions of an act, entitled " An 
act for the better government of towns and cities, and to amend 
the charters thereof " approved February 27th, 1854. 

That at such election, the votes were cast as follows : For 
*' Police Justices " — Andrew Akin, 3158 ; John King, jr., 3140; 
Henry Magee, 2675 ; Ephraim Ward, 3154 ; William H. Stick- 
ney, 2757 ; F. A. Howe, 2722 ; that the votes, so given for said 
Akin, King and Ward, were those of a majority of the legal 
voters of said city voting at said election. 

(a) Peoples*. Rives, 26 ni. R. 246. 


The People ex rel. Akin et al. v. Matteson et al. 

Votes were also cast at 'said election, as follows : " Magis- 
trates " — Calvin D'Wolf, 13 votes ; Nathaniel Allen, 2 votes ; 
William H. Stickney, 2 votes. 

" Police Magistrates of the city of Chicago " — William H. 
Stickney, 10 votes ; Calvin D'Wolf, 10 votes ; Nathaniel Allen, 
10 votes. 

If the votes cast for " Police Justices " are counted as properly 
given, then the relators are duly elected, and entitled to com- 
missions under the aforesaid act. 

It is admitted that said election was held, and said votes cast, 
under the provisions of said act ; it being, however, contended 
that the ballots having been for " Police Justices, " and not 
" Police Magistrates " (the term used in the act], said votes 
are illegal, and should not be counted. Now, it is hereby agreed 
to submit the question to the Supreme Court aforesaid, to be de- 
cided in the same way as if the application had been made in due 
form, the said Joel A. Matteson and the said Alexander Starne 
waiving the issuing of a writ and entering their appearance ; 
also waiving all questions of form, either in relation to the mode 
of proceeding or otherwise. If the Supreme Court shall be of 
opinion that the votes given for " Police Justices " as aforesaid 
are not illegal, for the reasons above stated, then they are to 
decide in favor of the relators, and a writ of peremptory man- 
damus may be issued. This agreement is to be deemed and 
taken for and have the same effect as a petition, writ and return 
thereto, and as if all the regular proceedings and steps had been 
taken to obtain a peremptory mandamus. It is further agreed 
as part of this case, that the relators have severally complied 
with all the requisites of the law to entitle each of them to a 
commission, if legally elected. It is likewise agreed that com- 
missions were issued March 14, 1855, to Calvin D'Wolf, Wm. 
H. Stickney. and Nathan Allen, as '* Police Magistrates" of the 
city of Chicago, and that they have qualified and entered upon 
the discharge of the duties of said offices. And the commissions 
80 issued to them were based upon the return of the city clerk, 
herein above mentioned. 

Stuart and Edwards, for Relators. 

W. T. Burgess, for Respondents. 

Caton, J. The statute referred to in the agreed case, and 
under which the election was held, provides for the election of 
" Police Magistrates. " This court, in the case of Welsh on 
habeas corpus, decided that law was passed under that pro- 
vision of the constitution which authorized the legislature to pro- 

DECE]\1BER TERM, 1855. 169 

The People ex rel. Akin et al. v. Matteson et al. 

vide for tlie election of justices of the peace ; so that, although 
law designates them under the generic term of magistrates, yet 
the strict constitutional name of the officer is " justice of the 
peace." This term is not used in the ordinance ordering the 
election,but that follows the statute ; and so do the ten votes given 
for Stickney and the two others, to whom commissions were issued, 
while over three thousand votes were given for the relators for 
" police justices ;" and we are asked by them and the executive to 
decide whether those votes should be counted for the relators, for 
the office to be filled at that election. Upon this point we cannot 
for a moment doubt, (a) 

In election contests, as in other cases, the question to be deter- 
mined depends upon facts to be ascertained ; and here we are 
simply called upon to determine, from the evidence before us, 
the simple fact of the intention of the voters who cast their 
votes. Did they intend to vote for the relators, to fill the offices 
for which this election was ordered? No rational mind can 
doubt upon this simple question of fact, as to the purposes for 
which these votes were cast. That is so palpable, that we shall 
not attempt its discussion. And yet the law is well settled that 
the court must be governed by the facts thus found, although 
there may have been some technical omission or informality in 
the wording of the vote which is cast. The quesion is : does 
the informality leave the intention of the voters doubtful ? In 
this case, we think there is no doubt. The voters cast for the 
relators designate the ofiice with as much technical precision, as 
fixed by the constitution, as do those given for the three who are 
said to have been commissioned, and even more so, although the 
latter follow the statute more closely. In construing this statute 
in the case above referred lo, we sought to get at the intention 
of the legislature, when the words jjolice magistrates were used ; 
and, on that question of fact, we had no doubt but that justices 
of the peace were intended, and so held ; that the legislature had 
a right to pass the law under that clause of the constitution. 
The same rule applies, when we ascertain the intention of th'^ 
voter. When we are satisfied on that point, we are bound to 
give effect to such intention. 

It was suggested at the bar, on behalf of those who received 
the commissions under this election, that mandamus will not 
lie, to admit the relators to an ofiice which is already filled. 
We recognize the rule as unquestioned, that, ordinarily at least 
the court will not, by mandamus, turn out one officer and admit 
another in his place. This we do not propose to do. We have 
nothing to do with those parties, who are not now before us. 
This decision docs not affect their rights to their ofiices, one way 
or the other. If thej were holding their offices rightfullv be- 

(a) Town of Lewiston vs. Procter, 23 Ul. K. 535. 


Skelley v. Kahn. 

fore, they will do so still. And if they had no legal right to the 
offices before, but were merely holding by color of office, this 
decision makes them no less officers dejure. Their right to 
the offices can be determined directly by quo warranto. 
The writ must issue as stipulated. 

Mandamus awarded. 

GusTAVUS Skelley, Plaintiff in Error, -y. Solomon Kahn, 
Defendant in Error. 


A bailee without reward, is required to use sucli care and discretion in the per- 
formance of a duty , as may be expected of all men of common prudence in their 
own affairs ;and will be liable only for baa faith or gross neglis^encc. 

If he undertake to convey or pay money, he is bound to perform iiis undertaking, 
with the care auo responsibility incident to such an obligation. 

The question of negligence, is a question of fact, to be passed upon by the jury. 

This was a suit brought originally by the plaintiff in error, 
before ajustice o£ the peace in Logan county, and taken up by 
appeal, by the defendant in error, to the Circuit Court of that 
county, and tried by Davis, Judge, without the intervention of a 
jury, at April term, 1854, of the Logan Circuit Court. The 
record shows that the plaintiff in error, who was sub-mail contrac- 
tor, placed in the hands of the defendant in error $30, to give 
to a Mr Sartain, who was the principal contractor — this sum of 
money being due from the plaintiff in error to " Sartain." A 
boy in the employment of " Sartain," who was carrying the 
mail for him from Waynesville to Middletown through Boatville, 
of which latter office defendant in error was postmaster, called 
upon defendant before the money had been deposited by plain- 
tiff, and told him he had been authorized by " Sartain," to get 
the money. Defendant informed plaintiff of this fact, to which 
he replied that he had not then collected the money, but would 
do so soon, and did so, and gave it to defendant before the 
boy made his next trip. He made no objection whatever to de- 
fendant giving the money to the boy. Defendant gave the money 
to the boy when he made his next trip, and informed plaintiff 
that he had done so, to which he replied that it was all right, or 
words to that effect. After the boy received the money he went 
to Middletown, the end of the route, and there left the mail 
bags, and has not since been heard of. 

Some time after it was ascertained, that the boy had abs^^onded, 
plaintiff demanded the money of defendant, and upon his refusal 

DECEMBER TERM, 1855. 171 

Skelley i). Kahn. 

to pay it, sought to make him liable in a suit. The court below, 
decided that appellee was not liable, and gave judgment against 
the plaintiff below for costs o£ suit, which decision has been 
assigned as error and the cause brought to this court. 

ScATES, C. J. The undertaking of the defendant, was gra- 
tuitously to carry the money to Sartain to whom it belonged ; 
designated in thelaAV of bailments as a inandatum^ and under 
which there may be a simple custody, or labor in carrying, or 
other character. Whether under that law, the bailee would, or 
would not, under any circumstance be liable for non-feasance of 
a bailment once undertaken, from which the bailor might be 
damaged, as a failure to present bills for acceptance or payment, 
and give notice, &c., I shall not here inquire, as the defendant 
did not decline to act. But the question arises upon the manner 
in which he performed the act. The general principle laid 
down on this subject is applicable to this case ; and there is little 
or no controversy as to what that principle requires. 

A mandatory or bailee, who undertakes, without reward, to 
take care of the pledge, or perform any duty or labor, is 
required to use in its performance such care as men of common 
sense and common prudence, however inattentive, ordinarily 
take of their own affairs, and they will be liable only for bad 
faith, or gross negligence, which is an omission of that degree 
of care. Tracy et al. u. Wood, 3 Mason R. 132 ; 2 Kent Com. 
668 to 573 ; 17 Mass. R. 479 ; 8 Metcalf R. 91 ; Storv on Bail- 
ments, Sees. 174, 175 ; 2 Hawk. N. C. R. 145 ; Doorman «. 
Jenkins, 2 Adolph. and Ellis R. 256 ; Coggs •». Bernard, Ld. 
Raymd. R. 909 ; 11 Wend. R. 25 ; 14 Serg and Rawl. R. 275. 

If the mandatory undertake to carry or pay money, or trans- 
mit it, and the money is delivered to him for that purpose, he is 
bound to perform his undertaking, under the degree of care 
required, and subject to the degree of responsibility attached to 
such an undertaking. Story on Bailments, Sees. 171a, 1716, 
171c ; 11 Wend. R. 25. 

Whether there is gross negligence or not, seems to be a ques- 
tion of fact, for a jury upon all the circumstances ; Story Bail. 
Sec. 174, notes ; and the line of distinction, between what is 
and what is not sufficient diligence in the bailee, under the cir- 
cumstances, is nice and difficult to draw. See Jones on Bail- 
ments 62. Rendberg's case, 6 Rob. R. 142, 155; Tracy -w. 
Wood, 3 Mason R. 132. 

The difficulty in this case, is not in the principles of law 
which govern, but in the facts ; and this is made^more apparent, 
by the fact that the issue has been found in favor of such party. 


Lawrence v, The People. 

From tlie view we take of the facts, we cannot sustain the 
finding of the court. But by no standard of common prudence 
in common affairs can we say, that it was not a gross negligence 
to hand money to a strange boy, and especially under the sus- 
picious circumstances, that he had demanded all the money com- 
ing to his employer from defendant's post office within three or 
four days after he commenced carrying the mail. 

Had Sartain usually, or ever, sent for money in that way be- 
fore, or without sending the drafts or an order, this conduct 
might not have appeared so gross ; but the contray is in proof ; 
and such seemed to have been the effect upon the postmaster at 
Kickapoo, who demanded a draft or an order. If the defend- 
ant was imposed on by these circumstances, and the simple fact 
that the boy was employed as mail rider, he has shown a degree 
of stupidity and carelessness at variance with all prudence. It 
is true, the money might have been safely carried by the boy, but 
there was not one circumstance to warrant any one having the 
slightest degree of prudence, to rely upon or expect it. 

There is nothing shown in the plaintiff's conduct, assenting to 
any more than what defendant recommended by his own conduct 
in the matter. 

If we could feel satisfied upon any veiw of defendant's case 
in this matter, we should affirm the judgment. But we cannot, 
and therefore the judgment must be reversed and the cause 
remanded for another trial. 

Judgment reversed. 

Caton, J. I think this judgment should be affirmed. 

Thomas H. Lawrence, Plaintiff in Error, ti. The Peopee, 
Defendant in Error. 


A scire facias on recognizance stands it the place of a declaratien, and fills the 
same office. 

It is sufficient to state a recognizance, according to its operation and legal effect ; 
or it may be set out verbatim, and the court will decide upon its effect. 

The certificateof the justice, before whom a recognizance is taken, is essential to 
its validity, and inipliesits approval by him; no form of words is necessary to 
this end ; if the officer took and accepted the recognizance for the purposes con- 
templated by the law. 

DECEMBEE TERM, 1855. 173 

Lawrence v. The People. 

A scire facias Tvas issued out of the Circuit Court of Madison 
couatj, Illinois, on the 23rd day of August, 1855, setting forth, 
that, "^on the 12th of March, A. D. 1855, Thos. J.Lawrence, 
John P. Lawrence and Thomas H. Lawrence did personally 
appear before John A. Maxey, an acting justice of the peace of 
said county, duly elected, commissioned and qualified, and then 
and there, before said justice of the peace, did enter into, sign, 
seal and deliver, a certain recognizance, which recognizance is 
set out in full in said scire/acias, to which the justice attached 
the following certificate : 

" Taken and acknowledged before me, the 12th day of March, A. D. 1855. 

John A. Maxey, J. P. [seal.]" 

And that said recognizance was returned by said justice, to 
the Circuit Court of said county, and filed therein on the 27th day 
of March, A. D. 1855. And that an indictment was returned 
into said Circuit Court, by the grand jury, at the April 
term, 1855, against Thomas J. Lawrence, on a charge of lar- 
ceny, which indictment is set out in full in said scire/acias, with 
the endorsements thereon ; and that the same was filed in said 
court, on the 4th day of April, 1855 ; and that afterwards, at 
said term, an order of the Circuit Court was made, which order 
is set out in full. The scire facias then concludes in the usual 

The said Thomas H. Lawrence was served with process on 
the 24:th day of August, A. D. 1855 — the other parties not 
found — afterwards, on the 6th day of September, 1855, the said 
defendant, Thomas II. Lawrence, filed a general demurrer to said 
scire facias, which the Circuit Court overruled and entered 
judgment against Lawrence for the penalty of the recognizance 
and costs of suit. 

J. and D. Gillespie, for Plaintiff in Error. 

A. W. Metcalf, for The People. 

Skinner, J. This was a scire facias upon a recognizance 
Thomas H. Lawrence, one of the cognizors, appeared and 
demuiTed to the scire facias. The demurrer was overruled, 
judgment of execution rendered against him, and the suit was 
continued as to the other cognizors, who were not served. 

It is objected that the scire facias is insufiGlcient, because it does, 
not contain an averment that the obligation was approved by 
the justice of the peace before whom it was taken. The obliga- 
tion is set out in the scire facias, and shows on its face the fol- 
lowing certificate : 


Lawrence v. The People. 

** Taken and acknowledged before me, this 12th day of March, A. D. 1855. 

John A. Maxey, J. P. [seal.]" 

The statute provides that" all recognizance that have any 
relation to criminal matters, shall be taken to the people of this 
State, shall be signed by the person or persons entering into the 
same, shall be certified by the judge, justice of the peace, or 
other officer taking the same, and delivered to the clerk of the 
Circuit Court," &c. R. S. 191, Sec. 205. 

The scire facias stands in the place of a declaration, and, for 
j;he purpose of pleading, fills the same office. The certificate 
of the justice is a part of the recognizance and essential to its 
validity, (a) 

It was sufficient to state the recognizance according to its 
operation and legal effect, or to set it out in its 'Gery words, leav- 
ing it to the court to determine upon its legal effect. 1 Chitty's 
PL 335. The pleader chose the latter course, and hence what 
appears from the recognizance need not be again averred. If 
the scire facias had averred that the recognizance was " taken 
and approved^'' by the justice, the recognizance itself would have 
proved the averment, for such is the legal eifect of the certificate. 

All that is important to the validity of the recognizance, in 
this respect, is, that it appears therefrom that it was taken before 
and certified by the officer authorized to take the same. The 
taking and certifying theifistrument officially, as a reconnizance, 
necessarily involves an apvroval. No form of certificate is given 
by the statute, and it is not material what language is used, so 
that it appears that the officer took and accepted, the recog- 
nizance for the purposes contemplated by the law. The case of 
Bacon et al. v. The People, 14 111. 312, is relied upon by the 
plaintiff in error. In that case, it does not appear that the 
recognizance v>as set out in the scire facias, v.n^ the averment 
was that the cognizors " executed and delivered to the justice 
a certain bond or recognizance whereby " &c. ; and this court 
held that the averment was not sufficent to show that the obli- 
gation was taken and approved by the officer. 

In this case, the tateing and approval appear from the recog- 
nizance set out in the scire facias, and this is equivalent to such 

Judgment affirmed. 

(a) Wood vs. People, IGIU. R. 172. 

DECEMBER TERM, 1855. 175 

Sooth et al. i\ Rives. 

Bebee Booth el al.. Plaintiffs in Error, -y. George. W. 
Rives, Defendant in Error. 


The Supreme Court will not reverse a judgment as being against evidence, un- 
less the finding of the jury is clearly so. • 

■ This was an action of assumpsit brought by Rives against 
Martin and Booth. Plea, non-assumpsit. Jury waived. Trial 
by the court, Harlin, Judge, presiding, at October term, 1853, 
of the Edgar Circuit Court. 

On the trial the plaintiff proved by Robert M. Rhae that from 
the first of June to the first of September, 184T, plaintiff was 
absent from home. That plaintiff and witness owed a joint 
note falling due first August of that year ; plaintiff's part of 
said note being seven hundred dollars or more. Plaintiff, when 
he left home, left the money to pay his part of the note or the 
greater part of it, with his wife, and directed witness to call 
on her when the note became due, get the money and pay it off. 
A few days before the note became due, witness went to plain- 
tiff's house together with defendant^ Martin, who fell in company 
with him on the way. Witness only got from plaintiff's wife 
three hundred or three hundred and fifty dollars. Witness 
wanted more, but Mrs. Rives said that was all she had. On 
their way home witness spoke harshly of plaintiff, for having 
assured witness that his plaintiff's share of the money to pay 
the note was left with his wife, and when he called he could 
only get the amount he did. Defendant Martin, replied to 
witness, " you should not blame Rives for that, he was owing 
us about six hundred dollars, we wanted the money ; since he 
left I went to his wife and got from her three hundred or three 
hundred and fifty dollars, (which sum witness cannot recollect, 
but believes it was three hundred and fifty,) on account, against 
Rives." Witness further testified that defendants were at that 
time, and before and since, partners in merchandise in Paris. 
Witness further testified that some years afterwards, he believed 
in 1851, but it might have been in the spring of 185u, witness 
and Rives settled their accounts, and among the rest the note 
afor.esaid ; when, for the first time, he informed plaintiff of the 
amount of money he had got from Mrs. Rives, and Martin 
had got the balance. Plaintiff further proved by George Hard- 
ing that in the yaar 1848 he heard defendant, Martin, say, 
" Rives was owing me, and I went to his house and got fron his 


Booth et al. v. Rives. 

wife some money." Defendant named the sum, — witness does 
not recollect tlie amount, but it was a considerable sum. Jona- 
than May testifies to the same statements made by defendant in 

Plaintiff further proved by Georg Hoge that in 1847-8 and 
hitherto, he was a clerk in the store of the defendants. Plain- 
tiff had frequent access to the books of the firm, and examined 
his own accounts "previous to 1851 ; witness identified the books 
of the firm. Said books were introduced, and showed no credit 
in 1847 for $300 or |350, nor for any sum that year exceeding 
$200, (in February,) but the books showed a credit of $300 in 
February, 1848. This was all the plaintiff's evidence. 

Defendants then proved by Newton Booth that in all the year 
1847, and until April, 1848, he was a clerk in the store of 
defendants ; was their book-keeper, and had daily access to the 
money drawer, books and accounts of the firm ; that sometimes 
when defendants lent money to their friends, and the transaction 
was a short one, to be repaid in a few days, noted the amount 
on a slip of paper and dropped it in the money drawer as cash, 
and when the money was paid they tore up the slip of paper 
and no entry was made on the books ; but sometimes such trans- 
actions were entered on the book. 

That no such slip of paper could have been in the drawer, 
and escaped his notice, as he believed. That he had never 
heard of such slip of paper, or of the receipt of $300 or $350 
for the year 1847, and the books showed no such transaction 
for that year. The first he had ever heard of any such trans- 
action was from the witnesses on the stand at this trial. 

The defendants proved by Thomas J. Martin that in February, 
1851, he was present at a settlement between defendants, Martin 
and Rives, for house rent due to Martin individually. On set- 
tlement Rives fell in Martin's debt $32, for which he gave his 
note to Martin. Defendant, Martin, or the firm it did not 
appear which, had bought a note on plaintiff, on Avhich Robert 
Clark was security, which they held. The book account of 
plaintiff with the firm was then examined, afterward the notes 
were sued on, and judgment obtained ; the account and judg- 
ment against plaintiff were paid off ; plaintiff, on the day of 
settlement had access to and did examine the books of the firm, 
but neither on •;hat or any other occasion did he make any men- 
tion of the error of $300 or $350, as shown by the books. 

Defendants proved by James Clark that in 1851 he heard 
plaintiff say that defendants^ knew he was embarassed, and 
were crowding him too hard ; he was able to pay, but wanted 
time ; that they had better not crowd him so hard, there had 

DECEMBER TERM, 1855. 177 

Booth et al. v. Hives. 

been large money transactions between them which had been 
loosely kept ; that he had the advantage of them, and i£ they 
did not cease to oppress him, he would have his revenge. 

The defendants proved by Robert Clark that in 1851 he heard 
plaintiff say that defendant, Martin, was oppressing him ; that 
their money transactions had been kept very loosely, and that 
he had an advantage of defendant, Martin, but he would pay 
him off and be done with him. This was all the evidence in 
the cause on which a verdict was found for the plaintiff for 
^380 ; defendants thereupon moved for a new trial, which motion 
was overruled by the court, and judgment was rendered for 
plaintiff against defendants for $380 and costs ; to which defend- 
ants excepted. 

And the plaintiffs in error assign for error : 

1st. That the court erred in overruling their motions^for a 
new trial. 

2nd. The court erred in finding for plaintiff in the court 
below and rendering judgment for him on the evidence in the 

3rd. The court erred in not finding for and rendering judg- 
ment in favor of the defendants in court below- 

S. T. Logan, for Plaintiffs in Error. 

A. Lincoln, for Defendant in Error. 

Caton, J. The controversy in this case is purely one of fact, 
and we think the finding of the court is sustained by the 
evidence. It is not controverted that the money sued for was 
received by the defendants below, of the plaintiff's wife, in 
1847. And the proof is positive that it was not placed to the 
plaintiff's credit on the defendant's books at the time ; and it is 
altogether probable that it never was. The weight of evidence 
clearly is, that the amount received was $350. Some six 
months after, there was placed to the defendant's credit |300 ; 
and in the course of the year other considerable sums ; what 
these credits were for does not appear. It may or it may not 
be that this three hundred dollar credit was for the money got 
of Mrs. Rives, but we cannot say that it was so, nor is there 
any strong presumption that such was the case ; and indeed we 
think the probability is the other way. The credit is for a less 
Bum and at a much later period. Afterwards the parties had a 
settlement, and nothing was said about the money obtained 
from Mrs. Rives. 

In 1847, when the plaintiff left home to be absent for soma 
time, he left with his wife seven hundred dollars to pay hi* 

ILL. REP. — xvn. — 11 


Dickersoni). Sparks. 

share of a note which he had executed jointly Avith one Rhea, 
which was to fall due before the plaintiff was expected to return. 
Rhea was to call on the plaintiff's wife and get the money and 
pay the notes. At the proper time he did call for the money, 
but Mrs. Rives said she had for him but three hundred and fifty 
dollars, which he got. When complaining of this, one of the 
defendants explained that he had previously got the other three 
hundred and fifty dollars of Mrs. Rives, and applied it on the 
indebtedness of the plaintiff to the defendants. Rhea never 
informed the plaintiff of this till their final settlement several 
years after, and long after the final settlement which had taken 
place between the plaintiffs and defendants, and at which no 
mention was made of this money obtained from Mrs. Rives, so 
far as we are informed. The probability that Rives was 
informed of this payment to the defendants on his return home 
and before his settlement with the defendants is no doubt 
entitled to weight ; and some vague threats made by the plain- 
tiffs when complaining of the conduct of the defendants, are 
also entitled to consideration. But we do not think these enti- 
tled to such weight as to justify us in reversing the finding of 
the court below setting in the place of a jury. It is at any 
rate not that clear case of a finding against the evidence as the 
rule of law re^^uires to justify this court in reversing the judg- 

The judgment must be affirmed. 

Judgment affirmed. 

Joshua Dickerson, Appellant, X). Truelove Sparks 


In an action for cdrn sold and delivered, it is for the jury to determine from the 

evidence the quantity sold, and the plaintitfjneed not necessarily prove'the exact 

quantity delivered. 
The competency of evidence is for the court to decide, and the jury will pass upon 

it according to its weight and preponderance when it has been submitted to 


The only question submitted to the court by this record is 
fully stated in the opinion. 

D. A. Smith, for Appellant. 

J. M. Palmer, for Appellee. 

DECEMBER TERM, 1855. 179 

Myers et al. v. Turner, and Same v. Same 

Skinner, J. Assumpsit by Sparks against Dickerson, tore- 
cover for corn sold and delivered. 

The defendant below asked for the following instruction, 
which the court refused to give : ''That before the plaintiff can 
recover in this case on a contract for sale and delivery of corn 
he must prove clearly and specifically by competent evidence the 
quantity of corn, and that the statement of plaintiff's witness 
that his father had exhibited a memorandum book of the quan- 
tity of corn, is not such evidence. 

The court properly refused the instruction. The plaintiff had 
proved the sale and delivery of corn by him to the defendant, 
but the precise quantity so delivered, did not from the evidence 
with certainty appear. It was for the jury from the evidence to 
determine as to the quantity^ and it was not necessary to a re- 
covery, that the plaintiff should prove the exact quantity of corn 

It would be equivalent to a denial of justice in suits arising 
out of transactions of daily occurrence, to lay' down such a rule. 
The language of the instruction, "clearly and specifically, and 
by competent evidence," is objectionable and well calculated 
to deceive and mislead a jury, and should upon that ground have 
been refused. 

The competency of the evidence was for the court, and the jury 
were to determine the questions of fact submitted to them from 
the evidence, and according to its weight and preponderance. 

This is the only question presented by the record for decision 
of this court. 

Judgment affirmed. 

George Myers et al.^ Appellants, n. William Turner, 

Appellee ; and 
Same -y. Same. 


The assignment of an interest in a patent, granted for an ornamental design for 
an ' * horological cradle," is a sufficient consideration to enable a party to re- 
cover 01! promissory notes given therefor, although the invention may be 
practically of but little value. 

That although the assignment described the patent as being for ' ' an horologi- 
cal cradle," it will be understood as of the thing patented, without reference 
to all the parts which constitute a cradle. 

Where the patent assigned is referred to by date it, may be presumed the pur- 
chaser examined it for himself. The maxim of " ca«ea^ emptor^' y/omIA apply 
to such a transaction. 


Myers et al. v. Turner, and Same?;. Same. 

These were actions of assumpsit on promissory notes. The 
sole defence goes to the consideration of the notes. It is pre- 
sented by three pleas. 

1st, That the notes were given for an interest in a supposed 
patent for an " horological cradle, " whereas there was no such 
patent, but only a patent for an " ornamental design" for an 
" horological cradle." 

2nd, That said notes were given for an interest in a supposed 
patent, which interest said Turner was supposed to hold by an 
assignment from the patentee, and that no such assignment had 
been recorded according to law. 

ord. That said notes were given for an interest in a supposed 
patent, and that said patent contains more than is necessary to 
produce the described eifect, which addition was made for the 
purpose of deceiving the public. 

Pleas traversed and trial by court by agreement, Davis, 
Judge, presiding, at September term, 1855, of the Logan Cir- 
cuit Court. The defendants below gave in evidence an instru- 
ment in writing made by one Alexander Edmunds, purporting 
to transfer to the plaintifl" and one McCarty Hildreth, a certain 
interest under a patent to said Edmunds, of date Feb. 23, 1853, 
for an "horological cradle," which instrument is an assignment 
of said Turner's interest therein to the defendants below. 

Defendants also gave in evidence a patent and specifications to 
Alexander Edmunds, of date Feb. 22nd, 1853, for an " orna- 
mental design" for an horological cradle. 

Defendants also proved by said Edmunds that this is the only 
patent ever issued to him, and that the notes herein were given 
for the supposed transfer evidenced by the two successive 
assignments hereinbefore mentioned. 

This was all the evidence. 

The court gave judgment for the plaintiff below, and defend- 
ants appeal and now assign for error that the court below erred 
in rendering judgment for the plaintiff below. 

Stuart and Edwards, Lincoln and Herndon, for Appel- 

L. P. Lacey, for Appellee, 

Caton, J. These actions are upon promissory notes, to which 
the defendant pleaded a want of consideration. On the trial 
was given in evidence by the defence a patent issued by the 
United States to Alexander Edmunds, bearing date the 23rd day 
of February, 1853, for " a new and useful design for a cradle." 
The claim set forth in the specification, and which is referred to 

DECEMBER TERM, 1855. 181 

Myers et al. v. Turner, and Same v. Same. 

and made a part of the patent, is as follows : " What I claim 
as my production, and desire to secure by letters patent, is the 
design and configuration of the ornaments above described and 
set forth, forming together an ornamental design for an Horo- 
logical Cradle," A conveyance Avas also shown from Edmunds 
to Turner and Hildreth of the right to certain specified territory 
of the United States. This conveyance or assignment recites 
that, "whereas, Alexander Edmunds, of Mt. Pulaski, in the 
county of Logan, and State of Illinois, did obtain letters patent 
of the United States for an Horological Cradle, which letters 
patent bear date the 23rd day of February, 1853." It then 
assigns to Turnej and Hildreth " all the right, title and interest 
which I have in the said invention as secured to me by the said 
letters patent, for, to and in the States," &c. On the back of 
his conveyance they also showed an assignment by Turner of 
his interest therein to John and George Myers, for which the 
notes on which these actions were brought were given ; and the 
real question in these cases is, whether this assignment conveyed 
an interest in the patent issued to Edmunds, as it purported to 
do. If it did convey such interest as it professed to, then such 
conveyance constituted a consideration for the notes, although it 
may be true that the invention was practically of little or no 
value. The pecuniary value of an ornamental design must, to a 
great extent, depend on the public taste or fancy, of which the 
purchaser must be the judge. Caveat einptor. The objection 
is that the assignment was of a patent "for an Horological 
Cradle ;" whereas the patent granted was for an ornamental 
design for an horological cradle. To us the answer is obvious 
and satisfactory. The assignment does not pretend to use any 
technical words of description of the thing or right assigned, 
nor does it pretend to quote from or use the words of the patent 
in describing the right sold. In ascertaining whether the assign- 
ment was void, we must consider the case the same as if Ed- 
munds were now prosecuting the assignees for an infringement. 
And in such a case, I am sure he would stand but a poor chance 
with either court or jury. The subject matter of the transfer 
was beyond all doubt the right secured to Edmunds by thu 
patent ; such is the express language of the assignment. 

In describing the thing patented, language in most common 
use is used. It is universal in speaking of an invention applied 
to a particular machine to speak of the machine, as being the 
subject matter of the patent, as Danforth's Patent Mowing 
Machine, or Manney's Patent Reaper, or Wood's Patent Sawmill, 
or Woodworth's Patent Plaining Machine ; and yet, in almost 
all cases the part of the thing patented is very insignificant as 
compared with the whole. The right to make and use nineteen- 

182 SPRmOFlELD, 

Myres et al. v. Turner, and Same v. Same. 

twentieths of the very thing thus spoken of as patented, being 
common to all men ; and yet it would hardly be denied that an 
assignment by the patentees, in such general terms as are usual 
in speaking of the thing to which the patented part is attached, 
would convey the right to make and use the thing actually pat- 
ented. Now would it be pretended that the purchaser would 
suppose he was getting the exclusive right to make the entire 
machine and every part of it. So of the cradle. The novelty 
invented might have been in the propelling power which keeps 
it in motion, or some particular part of it, in the form of 
the bed of the cradle, or the frame to which it is attached, 
and by which it is supported ; or it might have been in the 
manner of attaching the body of the cradle to the mtoive 
power, had there been any novelty in these, or in any other 
part of the entire thing, whether of great or of little impor- 
tance, or whether really useful, or only ornamental. In either 
case, in common acceptation, the cradle to which such improve- 
ment would be applied would be called the patent cradle : and 
yet, by such designation, no one would suppose that every part 
and parcel of the cradle was new and patented. To find out 
the real extent of the new invention for which the patent was 
issued, resort would necessarily be had to the patent itself. 
Without such reference it is not probable that in one case in a 
thousand, where the purchaser, from a mere inspection of the 
machine, or the name given it by the inventor, would be able to 
determine, with any decree of certainty, what is covered by the 
patent. If the patentee sells the right to make such machines 
by the name which he gives it, or by any other designation or 
description which shows satisfactorily that he designed to sell 
to the assignee, the rights which were secured to him by the pat- 
ent, the assignment would, as a matter of course, convey the 
right the same as in the sale or transfer of any other right, 
interest or property. 

Had the subject matter of this conveyance been anything else 
which may be the subject of transfer, it would hardly have been 
contended that no title passed by reason of any supposed misde- 
scription in the assignment ; and yet, in this case, there is no 
provision of law requiring any technical or particular descrip- 
tion of the thing sold. It is, as in all other cases, still a ques- 
tion of fact. What did the party design to sell, and what did 
the purchaser expect to get? No one can doubt that the pat- 
entee designed to sell his patent right secured by the patent 
referred to ; and the purchasers could not, as reasonable men, 
have expected they were purchasing the exclusive right to make 
every part and member of the cradle which, was known by the 
designation of Edmund's Horological Cradle, for the form of 

DECEMBER TERM, 1855. 183 

Myers et al. v. Turner, and Same v. Same. 

some parts of it at least, must have been familiar to tliem from 
cliildhood, and they could not have supposed Edmunds the orig- 
inal inventor ; and, indeed, this remark will apply to by far the 
greatest portion of the machine. Of some parts at least, they 
did not suppose they were purchasing the exclusive, right to 
make. Then what parts did they suppose they were purchasing 
the right to make? If they could form no definite idea from an 
inspection of the machine itself, necessarily they had to resort 
to other means of information. This case does not show that 
they had any other representations or means of information 
except the patent itself. Had this patent proved of vastly more 
value than the price paid for it, by which the defendants were 
accumulating rapid fortunes, they would have been slow to per- 
ceive any defect in the description by which they were to be 
stopped in their career of success. If we could not in that case 
hold the assignment void for a misdescription, we cannot now 
say that the assignees did not get the right which, by the patent, 
was granted to the patentee. If they did, then that of itself, 
whether really valuable or not, constituted a sufficient consider- 
ation for the notes sued on. The notes then were not given 
without consideration. 

On the agrument it was suggested, and even pressed, that if 
a failure of consideration is not shown, a case of fraud is made 
out which should entitle the defendants to judgment. Much 
that has already been said will as well apply in answeriug this 
position and need not now be repeated. There is no evidence 
of any false representation by the plaintiff or- by Edmunds in 
any way or at any time, unless it is found in the assignment 
itself, the provisions of which, as to this point, have already 
been considered. The assignments refer specifically to the pat- 
ent by date, and it may not be a very violent presumptien to 
suppose that the purchasers examined it to see what they were 
buying. Should I buy a piece of land of a party by some gen- 
eral description which, without some reference to something else, 
would be unintelligible, but in my deed reference is made to the 
original patent by which it was conveyed by the government to 
my grantor, the description would become as certain, definite 
and satisfactory as if that description were copied into my deed ; 
and nothing short of positive proof of a fi'aud or clear mistake 
would remove the presumption that I had examined or under- 
stood the contents of the patent. There is not near as much 
suspicion of fraud in this case as there was in Edmunds v. Myers, 
16 111. 207, and yet in that case we reversed the decree and 
dismissed the bill because the charge of fraud was not sustained. 
That suit grew out of this same transaction. 

The judgment must be affirmed. 

Judg7nent affirmed. 


ilildrethw. Turner. 

McCarty Hildreth, Appellant, -y. William Turner, 


The act of Congress requiring a transfer of letters patent, to be recorded in the 
Patent Otiice within three months, is direclory only as between the parties. 

This was an action of assumpsit on a promissory note. The 
sole defence goes to the consideration of the note. It is pre- 
sented by two pleas : 1st. That the note was given for an inter- 
est for a supposed patent for an " Horological Cradle ;" whereas 
there was no patent, but only a patent for an /'ornamental 
design" for an horological cradle. 2nd. That the note was given 
for an interest in a supposed patent, and that said patent con- 
tains more than is necessary to produce the described effect ; 
which addition was made for the purpose of deceiving the public. 

Pleas traversed, and trial by the court by agreement. 

The defendant below gave in evidence an instrument in writ- 
ing, made by one Alexander Edmunds, purporting to transfer to 
the plaintiff" and defendant herein a certain interest in a patent 
to said Edmunds, of date February 23rd, 1853, for an "horo- 
logical cradle." 

Defendant also gave in evidence a patent and spcifications to 
Alexander Edmunds, of date February 22nd, 1853, for an orna- 
mental design for an horological cradle. Defendant also proved 
by said Edmunds, that the foregoing is the only patent ever 
issued to him, and that the note was given for the supposed 
transfer, evidenced by the instrument in Avriting aforesaid. This 
was all the evidence. 

The court gave judgment for the plaintiff below, and the de- 
fendant appeals, and now assigns for error that the court below 
erred in rendering judgment for the plaintiff" below. 

Stuart and Edwards and Lincoln and IIerndon, for Appel- 

L. P. Lacey, for Appellee. 

Caton, J. The first question in this case is precisely like that 
decided in Myers v. Turner, <2?i/e, and is determined in the same 
way, for the reasons there assigned. 

This record presents the additional question : whether the 
assignment or transfer of a patent right is operative, until it is 
recorded as required by the patent laws of the United States. 
The assignment was, by the act of Congress, required to "be 

DECEMBER TERM, 1855. 185 

Moore v. Vail, and Moore v. Dodd. 

recorded in the patent office vithin three months from the exe- 
cution [thereof." This act has been repeatedly held by the fed- 
eral courts to be merely directory as between the parties ; and, 
like our ordirary registry laws, designed for the benefit of subse- 
quent bona fide purchasers. The reasons assigned for this con- 
struction by Story, J., in Pitts v. Whitman, 2 Story R. 609, are 
conclusive. He says : "In the first place, it is difficult to say 
why, as between the patentee and the assignee, the assignment 
ought not to be held good as a subsisting contract and convey- 
ance ; although it is never recorded by accident, or mistake, or 
design. Suppose the patentee has assigned his whole right to 
the assignee, for a full and adequate consideration, and the 
assignment is not recorded within the three months — and the 
assignee should make and use the patentee machine afterward — 
could the patentee maintain a suit against the assignee for such 
making and use, as a branch of the patent, as if he had never 
parted with his right ?" But it is unnecessary to quote the whole 
of his reasoning. It is sufficient that the question has been set- 
tled by the federal courts, whose peculiar province it is to con- 
strue the acts of Congress. We lollow these decisions, not only 
because they are authority, but also because we are satisfied they 
are sustained by sound legal reasoning. 
The judgment must be affirmed. 

Judgment affirmed. 

Joshua Moore, impleaded with Ira Y. Munn, Appellant, 

Ti. George Vail, to use of A. Melick, Appellee ; and 
Same, Appellant, -y. Moses Dodd, Appellee. 


If. at the time a conveyance is made^ the premises conveyed are actually in the 
possession of a third party, claiming under a paramount title, it amounts to an 
eviction eo instanti. 

Upon the common covenant that the vendor his heirs &c., "will warrant and 
forever defend the title to said lots to" &c., there must not only be a want of 
title in the vendor, but there must be an ouster under paramount title, before 
action will lie. 

Such ouster may be established by showing that there was, at the time the coven- 
ant was made, a personin possession, holdingunderapnrmounttitle. A party 
is not required to take actual possession of premises ; but may even yield his 
possession, where another claims the premises under such a title, if presented 
and insisted upon. 

A covenantee, if he relinquishes possession, must take the burthen of showing 
the necessity for doing so. 

Where lands are unoccupied, asmay be in this State, the legal title draws after it 
constructive possession, which will continue until actual eviction ; and when 
possession is actually taken by one having paramount title, an action arises 
under the covenant, and the limitation commences to run from that time. 


Moore v. Vail, and Moore v Dodd. 

The actions in this case are precisely similar in pleadings 
and proofs, both being in covenant on a deed, by which the 
parties covenanted, "that they, their heirs, executors and admin- 
istrators will warrant and defend the title to the said premises 
(conveyed) to the vendee, his heirs and assigns for ever, against 
the claim of all and any person or persons whatsoever^" 

The cases were submitted to Woodson, Judge, of the Morgan 
Circuit Court, without the intervention of jury ; and a judgment 
was rendered against Moore for a breach of the covenant. The 
issue was found in favor of Munn, the other defendant, upon his 
plea of discharge in bankruptcy. Moore appealed, and insists 
that there was a legal eviction, as soon as the deed was made, 
by the actual possession and vald title of M. and F. Collins, and 
that he is now protected by the statute of limitations, 

September 1, 1836, is the date of the deed sued on. ' 

The deeds were made by Charles Collins, Munn and Moore, 
to Vail and Dodd respectively. 

At the time, Charles Collins, Munn and Moore had not, nor 
had either of them, any title whatever ; but M. and F. Collins 
then held the legal title, and were in the actual possession of 
the premises. 

November 26, 1836, M. and F. Collins conveyed to Charles 
Collins, Griswold and Leslie, and delivered the possession to 
them, taking, simultaneously, a mortgage to secure the purchase 

Shortly after, the possession was abondoned, and the prem- 
ises lay vacant for a time. 

Afterwards the mortgage was foreclosed ; and, under the fore- 
closure title, one Abrams took possession in 1848. 

A^ail and Dodd never had actual possession, and never sought 
to obtain it, by suit or otherwise. 

May 3, 1855, these suit were brought in the court below, by 
Vail and Dodd, respectively, against Munn and Moore, Charles 
Collins being dead. 

The emction^ insisted on by the plaintifi" below, is the taking 
possession,with title, by Abrams, in 1818. But it is alleged, in 
the alternative, that the lots are not on Sec, 12, but on 13. 

In this view, one Lynch was the true owner of the land, when, 
in 1835, certain judgments were obtained against him, and 
became liens on the land. 

In January, 1836, the land was sold on execution, to satisfy 
these judgments. 

In April, 1836, right of redemption not having expired, Lynch, 
remaining in possession, conveyed to Charles Collins. 

June 1, 1836, Charles Collins conveyed an undivided third to 
Munn, and an other third to Moore. 

DECEMBER TERM, 1855. 187 

Moore v. Tail, and Moore v. Dodd. 

September 1, 1836, Charles Collins, Munn and Moore made 
the deeds now sued on. 

Lynch continued in actual possession till the spring of 1837. 

In 1837, a person was in possession, supposed to be as tenant 
to Charles Collins. 

In 1839, the land, not having been redeemed from the execu- 
tion sale, was conveyed, by the sheriff, to the purchaser. 

In 1842, Mrs. Lynch, under the execution title, took possession, 
and this is the supposed eviction, on which the plaintiffs below 

D. A. Smith and A. Lincoln, for Appellant. 

M. McCoNNEL, for Appellee. 

Caton, J. With the view we take of the facts in this case, 
it is unnecessary to enter upon an examination of the questions 
which were argued, upon the supposition that the premises in 
question are situated on the east half of south-east quarter of 
Section 12, for, we find from the record that they were situated 
on the east half of the north-east quarter of Section 13. Taking 
the parol evidence as contained in the record, in connection 
with the recorded plat, and it is very uncertain on which quarter 
Collins' addition to the town of Naples was situated ; although 
from this alone, considering the statements of Collins, made to 
Murry, I should think the preponderance would be that it was 
on Section 12. The plat ot that addition does not determine 
on what tract of land the addition was • laid out, nor did any 
witness ever see it laid out on the ground. Nor is it at all 
probable, to my mind, that it ever was actually surveyed on any 
tract of land adjoining Naples, according to the plat as recorded. 
It is altogether probable that it was merely platted on paper, 
and recorded without an actual survey ; so that it might be as 
well supposed to be on one track as on another. But Collins 
pointed to the east half of south-east of Sec. 12, as his addition 
to Naples. That might be conclusive against him, as to any. 
person who purchased on the faith of that representation ; but 
as to the plaintiff in this case, and all others who purchased lots 
in that addition, of Collins, Moore and Munn, he made a differ- 
ent representation, and that, too, in a much more solemn form. 
On the 4th of June, 1836, Collins sold and conveyed, by two 
separate deeds of warranty, of that date, to Moore and Munn 
each, " The following described real estate, situated in Morgan 
county, in the State of Illinois, and immediately adjoining the 
old town of Naples, and including Charles Collins' addition to 
said town, to-wit : one equal undivided one-third of eighty acres 


Moore ii. Vail, and Moore v. Dodd. 

I bought of P. Lynch, being the north-east quarter of Section 
thirteen, in township fifteen north of range fourteen west." On 
the 18th of April previous, Lynch had conveyed this tract to 
Collins ; and Lynch derived title from one Keyes, who was the 
patentee from the government. Those deeds from Collins, to 
Moore and Munn, are muniments of title under which the plain- 
tiff received his conveyance. They affirm to all who purchase 
lots in Collins' addition under them, that the addition is situated 
on Section thirteen. Thev have as much ri^ht to insist that it 
is on Section thirteen, as Moore and Munn would have as against 
Collins, or as much as if their deed had contained the same state- 
ment that it was on this lot. We take it, 'then, as conclusively 
settled for the purpose of this action, that the premises in ques- 
tion were situated on the east half of the north-east quarter of 
Section thirteen, which Collins purchased of Patrick Lynch on 
the 4th of June, 1836. How, then, stand the other facts of the 
case ? There is no dispute that Lynch derived a good title from 
Keyes. But at the time he sold to Collins, there were certain 
judgments against him, which were liens upon the land, and 
under Avhich the premises were sold to one Bonesteel, who took a 
sheriff's deed in 1839, from whom, through a regular series of 
conveyances, the title was vested in Catherine Lynch; who, in 
1842, took possession of the premises, which at that time were 
vacant. At what time the premises became vacant, does not 
appear ; but the evidence does show that, at the time he sold to 
Collins, Lynch was in possession, and continued that possession till 
after the execution of this deed from Collins, Munn and Moore, to 
the plaintiff in this action, for the breach of the covenants of 
which this action is brought. The defence now insisted upon, is 
the statute of limitations. It is not denied that the title has 
failed, and that there has been, in contemplation of law, an evic- 
tion, so as to give the right of action on the covenants ; but it 
is insisted that the title failed, and that a technical eviction 
accrued on the first day of September, 1836, the moment the 
deed was executed, which was more than sixteen years before 
this action was brought. We admit the principle of law as 
claimed, that if, at the time this conveyance was executed, the 
premises were actually in the possession of a third party claim- 
ing under a paramount title, that of itself amounted to an evic- 
tion, eo instanti. Rawle on Covenants of Title. From the facts 
already stated, does it appear that on the 1st of September, 
1836, Lynch held possession of the premises under an adverse 
paramount title ? The presumption is that he held, in subordina- 
tion to the title which he had conveyed to Collins, and there can 
be no doubt that he might have been dispossessed, under the deed 
of conveyance on which this suit brought is by an action of 

DECEMBER TERM, 1855. 189 

Moore ». Vail, aud Moore v. Dodd. 

ejectment. The continued possession of Lynch not being under 
paramount title, nor even adverse to the plaintiff's title, did not 
constitute an eviction so as to give the plaintiff a cause of action 
on his covenant of warranty. But it is insisted that there is a 
stipulation on file, which deprives the party of the right to insist 
upon the facts as they are shown by the proofs in the record. 
That stipulation is: "That said Collins, Moore and Munn had 
no good title to the land when they so sold and convej'ed, and 
that their said title has failed, as charged in the declaration. " 
The fair construction o£ this stipulation is perfectly consistent 
with the facts. The stipulation is, not that they had no title at 
all, but that they had no good title. This is literally true. They 
had a title, but it was not a good one, by reason of the incum- 
brance by Avhich it was subsequently destroyed. It might have 
been rendered good, by a removal of that incumbrance before 
it ripened into a paramount title. But, admitting that the stip- 
ulation must be construed that they had no sort of a title at 
the time they sold, and that would not necessarily create a 
present liability, upon this common warranty in their deed. A 
mere want of title is no breach of this covenant. There must 
not only be a want of title, but there must be an ouster under a 
paramount title. Such ouster might be established by showing 
that there was, at the time the covenant was made, a person in 
possession holding under a paramount title ; but the stipulation 
is silent on that subject, and the proof is positive that Lynch 
was not holding under any adverse title to that of the covenan- 
tors. There was, then, no breach of the covenant at the time 
it was made ; consequently, as no cause of action then accrued, 
the statute of limitations did not commence running at that time ; 
nor that there was a legal ouster, which could amount to a breach 
of the covenant. 

Such eviction did occur, when Mrs. Lynch took possession of 
the premises in 1842. These are the facts, as before stated. 
At the time Patrick Lynch sold to Collins, certain judgments 
were existing against him, which were liens upon the premises, 
and under which they were sold to Bonesteel ; who, after the 
redemption expired, took asherifPs deed ; and thus, for the first 
time, was created an absolute and paramount title to that which 
P. Lynch had conveyed to Collins. This title, by a regular series 
of conveyances, passed to Mrs. Lynch in 1842, who then, finding 
the premises vacant, took possession under her paramount title. 
How long P. Lynch continued the possession after he sold to 
Collins, does not appear ; nor does it appear when the premises 
became vacant, or whether Collins or his grantees ever did take 
possession. Certain it is, however, that the premises were vacant 
when Mrs. Lynch took possession, under a paramount title, in 


Moore v. Vail, and Moore v. Dodd. 

1842. There is no pretence of an actual physical eviction of 
the plaintiff. He must rely upon a constructive eviction, or evic- 
tion in jjais. Few more interesting questions than this could be 
raised upon real covenants ; but this subject has been so well 
examined upon authority, by Mr. Justice Koerner, in the case of 
Beebe v. Swartwout, 3 Gil. 162, that I shall forego my inclination 
to go over that ground again. The older authorities undoubt- 
edly hold, that there could be no breach of a common warranty 
of title, or warranty for quiet enjoyment, until the covenantee 
had been actually evicted or turned out of the premises. The 
spirit of such a covenant, and the manifest justice of the matter, 
soon began to prevail over such an extremely literal interpretation 
of the intention of the parties. And it was held that, where., 
at the time of the execution of the covenantee, the premises 
were in the actual possession of another, who held them under a 
paramount or perfect title, then the covenant was broken as soon 
as it was made ; for the party should not be put to the useless 
expense, delay and trouble to bring ejectment to get the posses- 
sion, when it would certainly prove unavailing ; nor should he 
be required to commit an actual trespass upon the real owner, 
in order to get possesssion, that he might himself be turned out 
of possession. Bat this is not the only case of constructive evic- 
tion which may now be considej^ed as well settled by authority, 
and sustained by sound principles of morality and justice. If 
the covenantee be in the actual possession of the estate, he has 
the right to yield that possession to one who claims it under a 
paramount title, without resisting him by force or by litigation ; 
and this is sustained by the same reasons of justice and good 
government which are applicable to the first exception. This, 
however, is not to be understood as holding that the mere exist- 
ence of a paramount title constitutes a breach of the covenant, 
or that it will authorize the covenantee to refuse to take posses- 
sion when it is quietly tendered to him, or when he can do so 
peaceably, and then claim that, by reason of such paramount 
title and his want of possession, the covenant is broken ; nor will 
it justify him in abandoning the possession, without demand or 
claim by the one holding the real title. His possession, under 
the title acquired with the covenant, is not disturbed by the 
mere existence of that title ; and he has no right to assume that 
it ever will be, until he actually feels its pressure upon him. He 
must act in good faith towards his covenantor, and make the 
most of whatever title he has acquired, until resistance to the 
paramount title ceases to be a duty to himself or his covenantor. 
While he is not bound to contest, where the contest would be 
hopeless, or resist, where resistance would be a wrong, yet 
always, where he yields without a contest or resistance, he must 

DECEMBER TERM, 1855. 191 

Dickson v. The People ex rel. Brown. 

take upon himself the burthen of showing that the title was 
paramount, and that he yielded the possession to the pressure of 
that title. Whenever he does yield quietly, he does so at his 
peril, (a) 

In this country, where so much of the land which is the sub- 
ject of sale and transfer is actually wild and unoccupied, rules 
on the subject of eviction, as well as of possession, must be 
determined in reference to such a state of things. Although in 
this case, it does not appear that the covenantee was ever in the 
actual possession of the premises, yet he certainly once held the 
legal title ; and, the lands being then actually vacant, such legal 
title drew after it the coristructive possession ; and this con- 
structive possession continued until it was actually interfered 
with by the owner of the paramount title. Until that time, he 
might peaceably have entered upon and enjoyed the premises, 
without resistance or molestation, which was all his grantors 
covenanted he should do. They bid not guarantee to him a 
perfect title, but the possession and enjoyment of the premises. 
There was no interference with this, till Mrs. Lynch entered and 
took possession of the property, in 1842. This entry being by 
paramount title, although peaceable and without opposition from 
the covenantee, was at least a constructive ouster and a breach 
of the covenant. Then, for the first time, an action accrued 
upon this covenant, and not till then did the statute of limita- 
tions begin to run. Since then, sufficient time has not elapsed 
to bar this action. 

The judgment must be affirmed. Judgment affirmed. 

Archimedes C. Dickson, Appellant, v. The People, on the 
relation of George T. Brown, Appellee. 


A director of the State institution for the education of the deaf and dumb, 
appointed by the Governor with the advice of tlie Senate, holds an '' office of 
lionor," within the meaning of the twenty-nintli section of the third article 
of the constitution, which will be vacated by an acceptance of an appoint- 
ment as Marshal by authority of the Unitefl States. 

Ajndgmentof oustervipon a proceeding by quo warranto will not be reversed, 
because formal leave to tile the information had not been first obtained, if it 
ajjpears that there was an acquiescence in the proceeding. 

A director in tlie same institution (for the education of the deaf and dumb) has 
sufficient interest to entitle him to make the information in such proceeding. 

Dickson, the appellant, in January, 1853, was appointed by 
the Governor and Senate of Illinois, director for the Illinois 

(a) Baily vs. Moore, 21 lU. R. 170; Harding vs. Larkin, 41 Id. 414 ; Brady vs. 
Spui-k, 27 Id. 479. 


Dickson v. The People ex rel. Brown. 

Institut'lon for the Education of the Deaf and Dumb, and 
entered upon the duties of said appointment. 

Subsequently to this appointment and acceptance, the said 
Dickson was appointed, bj the President of the United States, 
Marshal for the southern district of Illinois, under the laws of 
the United States, and said Dickson accepted and entered upon 
the duties of said office. 

George T. Brown, in October, 1855, filed against said Dick- 
son, in the Circuit Court of Morgan county, an information, the 
object of which was to remove him from said appointment as 
director of said institution, averring that the two appointments 
aforesaid are incompatible, and that the acceptance of the office 
of marshal, was a virtual surrender of the said trust in said 

To sustain this information, the following clause in our State 
constitution is relied on : " No judge of any court of law or 
equity, secretary of State, attorney general, attorney for the 
State, recorder, clerk of any court of record, sheriff or col- 
lector, member of either house of Congress, or person holding 
any lucrative office under the United States or of this State, 
(provided that appointments m the militia or justices of the 
peace, shall not be considered lucrative offices,) shall have a 
seat in the General Assembly; nor shall any person holding 
any office of honor or profit under the go'Qernment of the 
United States, hold any office of hoixor or -profit undvr the 
autherity of this State.'' 

The information alleges the appointment of Dickson to said 
directorship in said institution, but does not allege the same to 
be an office of honor or profit under the authority of the State 
of Illinois. The information does not show any interest in 
Brown, the relator, in said office or in the question made by 
Said information, 

Dickson was summoned and appeared in the Circuit Court, 
and made a motion to quash the writ and proceedings in said 
case, for the reasons following : 

1st. That no affidavit was filed as to the truth of the said 
information ; the charge against Dickson being in the nature of 
a criminal charge in favor of the people, for violating a criminal 
law of the State. 

2nd. No notice was given to said defendant of the time and 
place of asking leave for suing out said writ of quo ivarranto 
to show cause against the leave to do so. 

3rd. Said writ was unaccompanied by a copy of said infor- 
mation, and, 

4th. Said writ and proceedings were insufficient to enable 
Baid relator to call upon said Dickson to answer. 

DECEMBER TERM, 1845. 193 

Dickson v. The People ex reJ. Brown. 

This motion was overruled by the court, and the defendant 
ordered to answer said information. 

The defendant then filed a general and special demurrer to 
said information, assigning, as a special cause of demurrer, that 
said office of director is not an office of honor or profit in the 
spirit and meaning of the State constitution. 

The court, Woodson, Judge, presiding, at October term, 1855, 
of the Morgan Cir.cuit Court, overruled this demurrer, and ren- 
dered a judgment upon said information that Dixon was guilty 
of illegally intruding himself into said office of director, and 
that he be ousted therefrom and pay the cost. 

Dickson took an appeal to this court, and assigns all those 
opinions and decisions of the Circuit Court for error. 

M. McCoNNEL and J. Grimshaw, for Appellant. 

W. BROWNand D. A. Smith, for the Relator. 

ScATES, C. J. On the 17th of February, 1853, plaintiff was 
duly appointed by nomination of the governor, and with the ad- 
vice and consent of the Senate, a director of the Illinois institu- 
tion for the education of the deaf and dumb, for six years, and 
on the — day of March, 1855, he was duly appointed United 
States Marshal for the southern district of Illinois ; and the 
only question is the incompatibility of the two offices under the 
provisino of iSection 29, Article 3, of our State constitution. 

The court is of opinion that the directorship of the institution 
is na office honor, within the meaning of that section, and that 
plainiff vacated it by his acceptance of the marshalship. 

The section provides that " no judge of any court of law or 
equity, se cretary of State, attorney general, attorney lor the 
State, recorder, clerk of any court of record, sheriff or collector, 
member of either house of Congress, or person holding any lucra- 
tive office under the United States or of this State — provided 
that appointments in the militia, or justices of the peace, shall 
not be considered lucrative offices — shall have a seat in the Gen- 
eral Assembly ; nor shall any person holding any office of honor 
or profit under the government of the Uuited States, hold any 
office of honor or profit under the authority of this State. 

To comprehend the true sense of the convention in what they 
mean by " office " here we must look to the whole instrument, 
and to circumstances, to ascertain the evil or danger to be 
guarded against. It is founded on revealed truth : '«' no man 
can serve two masters ; for either he will hate the one, and love 
the other ; or else he Avill hold to the one, and despise the oth- 
er " (Math. 9 : 24) ; and confirmed by observation and expe- 

ILL. REP.— ^xv^.— 12 


Dicksou V. The People ex rel. Brown. 

rience. Therefore to prevent a sacrifice of one of two interests 
under the same authority, the powers of the government are di- 
vided into three departments — and " no person, or collection of 
persons, being one of these departments, shall exercise any 
power properly belonging to either of the others." (Article 2, 
Sees. 1, 2.) It is intended to cut up the evil by the roots, with- 
out any speculation or experiment as to what might be the ten- 
dency of certain powers or places which seem, or might seem, to 
offer no inducement to abuse. 

But there are offices and powers necessarily conferred and 
exercised for the public good, not strictly assignable to either 
department of the government, and such is the one before us, 
and such was intended to be reached and provided for in the 
29th section referred to. This view is further strengthened by 
other provisions. Article 4, Sec 3, makes the governor ineli- 
gible to any other office until after the expiration of the term 
for which he was elected, nor shall he receive any emolument 
from the United States during the same time. (Sec. 5.) He 
shall appoint to all offices created by the constitution or law, 
when not otherwise provided for, (Sec. 12,) and might appoint 
himself to this directorship, if it be not an office within the con- 

It is objected to this construction of the constitution, that if 
such unimportant offices as these, are included within the mean- 
ing of the constitution, it will subject the incumbent to impeach- 
ment under the 26th section of the 4th article, which declares 
that the governor and all other civil officers, shall be so liable, 
and it never could have been intended to use so dignified 
and expensive a triblmal and mode of trial for every little mis- 
demeanor, in every petty office. While the constitution author- 
izes this mode of trial, it does not enjoin it mandatorily, but 
other modes may also be adopted, according to the dignity of 
the ofi'ender, and the degree of the ofience. 

" Every person who shall be elected or appointed to any office 
of profit, trust, or emolument, civil or military, legislative, exe- 
cutive, or judicial," shall take the oath against dueling, (Sec. 26, 
Art. 13); and any person who shall fight a duel, send or accept a 
challnge, or aid or abet in fighting a duel, shall be deprived of 
the right of holding any office of honor or profit, (Sec. 25, Art. 
13); and finally, " no person " shall be elected to any office, 
civil or military, who is not a citizen of the United States, and 
who shall not have resided in this State one year next before the 
appointment. (Art. 6, Sec. 7.) These various provisions are 
adverted to, to show that there was design in varying the terms 
of qualification in different provisions. The governor is ineligi- 
ble to any other office, and persons not citizens to any office. 

DECEMBER TERM, 1855. 195 

Dickson v. The People ex rel. Brown. 

The duelist is disqualified from any office of honor or profi/, and 
every person shall take an anti-dueling oath, as a qualification 
into any office of profit, trust, or emolument, civil or military ; 
yet justices of the peace and militia offices, are not to be deemed 
lucrative, in the same section which excludes from double offices 
of either honor or profit. ( Sec. '29, Art. 3.) It may not need 
an argument to show that the terms offices of honor and offices 
of trust are used in a synonymous sense in the sections disfi-an- 
chising the duelist and prescribing the anti-dueling oath ; and 
in the latter, profit and emolument will leave the sense of the lat- 
ter term, as merely enlarging the sense of the former, to all offices 
having pay or perquisites, whether profitable cr not. 

And indeed so I must understand the terms in the 29th sec- 
tion, lucrative and 'profit. The former only disqualifies for a 
seat in the General Assembly, and under the former constitu- 
tion (Art. 2, Sec. 25) the office of postmaster was excepted 
from lucrative offices. But an office of profit, whether lucrative, 
or profitable, or not — shall not be held under one government, 
and another of profit, or even mere honor, under the other gov- 

There are no fees, perquisites, profits- or salaiy; it is an hon- 
orable trust that is confided to the directory of this institution. 
Yet we are not able to say that it is not an office, but merely an 
employment. For this distinction is taken, and it is a sensible 
one, between an office and mere employment on a contract, 
express or implied. Large sums of money are placed under the 
charge of these directors, to be disbursed in the maintenance 
and education of the deaf and dumb. Although the institution 
was chartered, and commenced as a private eleemosynary one, 
it has since become a public corporation, endowed by biennial 
appropriations from the treasury, from taxes expressly levied 
for this purpose. It is governed by this board of directors, 
appointed by the Governor and Senate, and who hold their 
offices for six years. It is an office of honor, and if not of 
great distinction, it is yet one of a high, benevolent, and impor- 
tant trust, and which, if administered in the liberal and philan- 
thropic spirit in which it has been endowed by the public, will 
accomplish a great deal of good by relieving the 'misfortunes of 
those who so imperiously demand our aid, and deserve the warm- 
est sympathies of our hearts, although they cannot audibly 
appeal for the one, nor hear the kindliest expressions of the other. 

A decision or two may aid to throw some light upon a subject 
as yet but little discussed. 

In the Commonwealth -y. Binns, 17 Serg. and Raw. R. 219, 
the selection of a newspaper, to print the laws of the United 
States, was held not to confer an office upon the editor, and was 


Dixion v. the People ex rel . Brown. 

not incompatible with the office of alderman of the city of Phil- 
adelphia, which was held by the editor of the paper selected. 
It was regarded as a contract for service, and agencies and 
employments are not within the prohibitive meaning of the con- 
stitution and law. 

The same distmction was made in an advisory opinion by two 
of the justices of the Supreme Court of Maine, in answer to an 
application of the Governor, as to the power to appoint a sena- 
tor or representative of the same legislature which directed it, 
an agent for the preservation of timber on the public lands of 
the State, and other purposes. 

Such an agency is a mere employment, and not an office within 
the meaning of the constitution. 3 Maine R. , Appendix, 481. 
So again in The State of Deleware v. The Wilmington City 
Council, 3 Harring. R. 294 : the office of trasurer of a public 
municipal corporation,(such as the city of Wilmington, is not 
" a civil office " in that State, in the sense of the constitution, 
which disqualifies a clergyman from holding civil office. In 
their arguments, both the justices in Maine, and the court in 
Delaware, use expressions which are broad enough to exclude 
the office before us. For in the former, they seem to regard 
•' offices in the coustitutinal sense, as confined to those to which 
a portion of the general sovereign power of one of the three 
departments of the government, is confided, and in the latter, 
that when exercised through a corporation, the offices are " cor- 
porate," and not " civil," in the sense of the constitution. This 
all may be true to a great extent, but is not universal, nor invari- 
able. Corporations may be formed for the very purpose of 
exercising some of the important administrative functions of 
government, and the offices created in it, may possess all the 
powers for such object, that could be conferred on an indepen- 
dent civil office, and in its administration of the public authority 
be liable to all the bias, prejudice, corruption and abuse, intended 
to be provided against. So again an office may be created and 
an officer appointed to perform important public duties — impor- 
tant in exercising the administrative functions of government — 
and yet it may be difficult, strictly, to define and assign his 
office, powers and duties, to any particular department of the 
government. And this may be true, although it may be easy 
to exclude them from the legislature and jubiciary, and to show 
that authority must proceed from the former, yet they may be 
such as do not seem to belong to, or readily assimilate with, the 
executive department. 

In The Commonwealth v. Dallas, 3 Yeates R. 303, 314, it 
was held that the Recorder of the city of Philadelphia was a 
judge of a court of record, but was not such a judge as was 

DECEMBER TERM, 1855. 197 

Dickson v. The People ex rel. Brown. 

intended by their constitution, and that office was not incompat- 
ible with the office of district attorney of the United States. 

After vibrating between two opinions, and with hesitation, the 
court arrived at the conclusion, that the constitution intended 
only such judges as were distinguished by the constitution, the 
existing laws of the State, and the general language of the 
country. The case can form no precedent out of the State, nor 
will it throw much light upon the discussion of principle in its 
general application to offices, as that was not the term in their 

The formal objection in relation to previous leave to file this 
infoiTnation, we think insufficient to reverse this judg-ment. 
Leave by acquiescence will not be too strictly sanctioned when 
public redress is sought. The relator, as director of the same 
board, has shown sufficient interest to entitle him to make this 

We are not called upon in this case, and shall not discuss the 
grade of '' offices," with a view to fix any limit to the meaning 
of the constitution. This we think falls within the meaning and 
the mischief. 

Judgment affirmed. 

Skinner, J., dissenting. By an act of the legislature, approved 
February 23rd, 1839, certain persons were created a body cor-_ 
porate, by the style of " the president and directors of the lUi 
nois Asylum for the education of the deaf and dumb," with 
perpetual succession, power to contract, sue and be sued, have 
a conamon seal, purchase, hold and convey real estate, for the 
purposes of the corporation, and so forth. The legislature 
expressly reserved the power to alter, modify and change the 
charter or act of incoi-poration at pleasure, provided for private 
donation and public appropriation to establish and sustain the 
institution, and for the administration of the afi"airs of the insti- 
tution, by a board of directors and their successors. Laws of 
1839, 162. The legislature, by an act approved February Brd, 
1849, changed the name of the corporation, the term of office 
of the board of directors, provided for their appointment bien- 
nially, by the Governor and Senate, and for the filling of vacan- 
cies in the board, by the board of directors. Laws of 1849, 93. 

The constitution of this State declares " that no person hold- 
ing any office of honor or profit under the government of the 
United States, shall hold any office of honor or profit under the 
authority of this State." 

The record admits that the defendant has been appointed, by 


Dickson v. The People exrel. Brown. 

the government of the United States, marshal of the southern 
district of Illinois, since his appointment as one of the board of 
trustees of this institution, and has entered upon the discharge 
of the duties of the office. 

The institution is of a public character, for its uses and objects 
are public, but the corporation, through which the affairs of the 
institution are administered, is clearly a private corporation, of 
an eleemosynary character. Public corporations are such as are 
established for governmental and municipal purposes, and relate 
generally to communities, ^as counties, cities, towns, &c., and, 
perhaps, such as are of a strictly public character, and where the 
government is the sole founder and has the whole interest. 
Private corporations, although established, wholly or in part, for 
public purposes, are artificial persons, created by law, endowed 
with certain powers of maintaining such artificial existence, of 
performing acts, as persons, and incurring legal liabilities. In 
such corporations, private interests are in some manner involved, 
by voluntary donations, by the holding of stock, or the like ; 
although the government may also be interested, or be the prin- 
cipal founder and supporter of the same, by public appropriation. 
If the corporation is not created for the administration of polit- 
ical power, or for purposes strictly incidental thereto, without 
the intervention of individual interests, by donations or otherwise, 
the corporation, although for public purposes, is a private corpo- 
ration in law. Angel & Ames on Corp. 9 ; Ibid., Chap. 1, Sec. 
1, 2 and 3 ; Dartmouth College v. Woodward, 4 Wheaton 668 ; 
Allen V. McKeen, 1 Sum. (Cir. Court) R. 276 ; U. S. Bank 'G 
Planter's Bank, 9 Wheaton 907 ; Bank of South Carolina ■«. 
Gibbs, 3 McCord 377 ; 2 Kent's Com. 275, 276. 

In this case, the act of incorporation contemplates donations 
by private persons, provides for obtaining the grounds, upon 
which to erect the buildings of the corporation, by individual 
bounty, und confers all necessary powers and franchises char- 
acteristic of private corporations aggregate. Nor can it be con- 
tended that this corporation may not incur legal liabilities, that 
judgments may not be obtained against it, founded upon such 
liabilities and satisfaction obtained out of the corporate prop- 

All private corporations emanate from the sovereign power of 
the State, but they have a separate legal existence, n ay act as 
individuals, to the extent of the powers conferred by the law of 
their creation, and those lawfully administering the aflfaii'S of 
such corporations are, in no proper sense, municipal officers, or 
persons holding office under authority of the State. The trustee 
in this case, however, appointed, is an officer of the corporation, 

DECEMBER TERM, 1855. 199 

Thorpe v. Starr. 

having no powers appertaining to the political government of 
the State — an officer of the corporation^ and not of the gov- 

For the reasons stated, I am unable to concur in the opinion 
of the majority of the court ; and I purposely avoid intimating 
any opinion as to the extent of the operation of the clause of 
the constitution, before quoted, beyond the necessities of the 
case presented by the record. 

Moses Thorpe, Plaintiff in Eri'or, ■«. Sajiuel S. Starr, 
Administrator, &c.. Defendant in Error. 


A variance between a writ and declaration can only be taken advantage ot by 

plea in abatement ; and after an award upon a reference by the court siich a 

plea is unavailing. 
"Where a sole plaintifl"dies and the cause of action survives, an administrator 

should be substituted in the cause, and all subsequent proceedings should be 

had in Ms name . 
Upon a reference to arbitrators, by order of court, of matters in a pending suit, 

by agreement, judgment should be entered upon the award, as in a case of 

verdict by a jury. 

This cause was heard before Woodson, Judge. The opinion 
of the court gives a statement of the case. 

Browis! and McClure, for Plaintiff in Error. 

M. McCoknel and J. Gremshaw, for Defendant in Error. 

Skdwer, J. Aaron Starr sued Moses Thorpe in assumpsit, 
and declared against him in debt. The cause was refeiTed to 
arbitrators under the statute, and the arbitrators reported to the 
Circuit Court an award in favor of Starr. The record shows 
that letters of administration of the estate of Aaron Starr were 
filed in the Circuit Court ; the death of the plaintiff suggested, 
and Samuel Starr, the administrator, made a party, but does not 
show that the administrator was made party jjlaintiff. 

The letters of administration recites that Aaron Starr died 
intestate on the 24th day of November, 1853, (after the.making 
and filing in court of the award,) and appoints Samuel Starr 
administrator of his estate. The court, on motion, ordered, 
"^ that the award be approved and entered as a judgment" of 
the court. 



The People v. Phelps 

The award is set out, and then follows a judgment for cost 
and award of execution therefor. All the orders are entitled 
in the name of the original parties, and the administrator is no 
where further noticed in the record. Thorpe assigns for error 
that the writ is in assumpsit and the declaration in debt : that 
the judgment is in favor of Aaron Starr, who is shown by the 
record to have been dead at the time of its rendition, and that 
the judgment is informal and insufficient. 

The variance between the writ and declaration could only 
have been taken advantage of by plea in abatement, and after 
the award such plea would have been unavailing. Weild Ti. 
Hubbard, 11 111. 573 ; 1 Chitty's PI. 581 : Wilson io. Nettleton, 
12 111. 61. 

Under the statute, where a sole plaintiff dies and the cause 
of action survives to personal representatives, the death being 
suggested and the administrator made known to the court, an 
order should be made substituting such administrator plaintiff in 
the cause, and the cause should then proceed to judgment and 
execution in the name of the administrator. R. S. 41, Sec. T. 

The reference to arbitrators in this case was made of matters 
of a pending suit, and by order of court, upon agreement of the 
parties ; and upon the coming in of the award judgment should 
have been entered thereupon as in case of verdict of a jury. 
R. S. 56, Sec. 2 ; ibid. 57, Sec. 8. 

The judgment is reversed and the cause remanded, with di- 
rection to the Circuit Court to make an order substituting the 
administrator party plaintiff and to render judgment in his favor 
for the amount of the aAVfird in debt, and for costs, unless cause 
to the contrary be shown. 

Judgment reversed and cause remanded. 

Judgment re'Viersed. 

The People, Plaintiff in Error, T). William Phelps. 
Defendant in EiTor. 


A suit by scire facias on a forfeited recognizance in a criminal case is for the 
recovery of a debt of record, and is a distinct pi oceeding from the criminal 
matter out of which it aiises. 

If bail, by means of a capias on the indictment found, can produce the prin- 
cipal, so as to procure their own discharge from scire facias, by a surrender 
of the principal, the costs under the capias are not properly chargeable as 
costs under the proceeding by scire facias. 

DECEMBER TERM, 1855. 201 

The People v, Phelps. 

The defendant in error entered into a recognizance with one 
Bennet for the appearance of the latter to answer to a criminal 
charge. The recognizance was forfeited, and a. scire facias 
issued against Bennet. Before judgment was entered on the 
sci. fa., Phelps procured a capias to be issued, upon which 
Bennet was arrested aud brought into court, whereupon Phelps 
asks to he discharged, to which the State's attorney objected, 
unless Phelps should first pay the costs made upon the capias, 
issued at his instance. The Circuit Court, Walker, Judge, pre- 
siding, ordered his discharge, to which the State's attorney 
excepted, and brings the case here. 

W. C. GoUDY, District Attorney, for The People. 

W. Kellogg, for Defendant in Error. 

ScATES, C.J. The institution of a suit by scire facias on 
default of appearance on a recognizance in criminal cases, is 
for the recovery of a debt of record ; and it is a distinct pro- 
ceeding from the criminal proceeding out of which it arises, and 
in no sense interferes with the process or progress of the crim- 
inal charge. It become a civil proceeding : indeed I believe 
at the common law, it was not in the same court but by estreat- 
ment of the recognizance into the king's exchequer, the scire 
facias issued from that court, for the purpose of awarding execu- 
tion for the debt due the king, as in other cases, for the collec- 
tion of his revenue. 

When a defendant escapes from custody, or makes default on 
recognizance, the people are entitled to a capias against him, as 
a matter of course ; and it issues in the criminal and not the 
civil case. The intermeddling of a surety of defendant in a 
recognizance, by himself or his attorney, without the advice or 
direction of the State's attorney, either in asking for the capias 
or in procuring its service, will not charge them with liabilitv 
for the costs taxable for the process or service of it, as principal 
or surety for costs, as for services rendered to them in the case. 
Although such surety may be quickened to diligence and activity 
in procuring defendant's arrest, by the desire to procure his 
custody, with a view to his surrender in discharge of his own 
liability, it cannot be allowed to change his relation to the pros- 
ecution from that of a citizen of the community into that of 
party or surety for costs. 

Bail have the right to procure a certified copy of the recog- 
nizance, and power under it to arrest their principal and sur- 
render him to the sheriff, in discharge of the recognizance, upon 
payment of cost, at any time before award of execution on scire 


Davis 1). Scarritt 

facias^ [ Rev. Stat. 187, Sec. 196 ] ; and we apprehend no 
reasonable objection can be urged against their using the same 
diligence and activity in accomplishing the same end by a capias 
on the indictment ; but not in the sense of surrendering to or 
allowing bail to take the control of the prosecution or the 
process, (a) 

Under these veiws of the rights and liabilities of bail, we are 
all clearly of opinion that the item of forty dollars cost of 
executing the cajnas issued on the indictment, belongs to the 
costs taxable in that case, and is improperly put into the bill of 
cost taxable in the scire facias. The defendant having paid 
air costs properly taxable against him, up to the surrender of his 
principal, is entitled to be discharged of his liability on the 
recognizance and scire facias. 

Order of discharge is affirmed. 

Judgment affirmed. 

Thomas Davis, Plaintiff in Error, -y. Isaac Scarritt, 
Defendant in Error. 


The affidavit of one of several defenclaiits,denyingthe existence of a partnership, 
or tlie execution of the instrument sued oii, renders it necessary, as to him, 
tliat proof of partnership, or of the liand writing, should be made. Co- 
defendants are not entitled to any direct benelit from such affidavit. ~ 

Action of assumpsit, commenced by the defendant in error 
against Davis, the plaintiff in error, and one Wm. Paukey. The 
declaration contains two counts, and commences, Isaac Scarritt, 
plaintiff in this suit, complains of William Pankey and Thomas 
Davis, late partners, trading and doing business under the name, 
style and firm of Pankey & Davis, defendants. 

For that whereas the said defendants heretofore, to wit : on 
the 24th day of July, 1851, at Alton, to wit : at the county of 
Greene aforesaid, made their certain promissory note in writ- 
ing, by the name, style and firm of Pankey & Davis, bearing 
date the day and year last aforesaid, and then and there deliv- 
ered the said note to the said plaintiff, by which said nota the 
said defendants promised to poy to the order of the said plain- 
tiff, four months after the date thereof, three hundred and forty 
dollars and forty-one cents, for value received, &c. 

And whereas, also, the said defendants afterwards, to wit : 
on the 3rd day of October, 1851, at the county of Greene, 

[o] Wcesevs. People, 19111. K. 646; Mather vs. People, 12 Id. 9;Gmgrichvs. People, 
%i Id. 448. 

DECEMBER TERM, 1855. 203 

Davis V. Scarritt. 

made their certain other note in writing, bearing date the day 
and year last aforesaid, by which note, the said defendants, by 
the name, style and firm of Pankey & Davis, promised to pay to 
the order of the said plaintiff, one day after the date thereof, 
six hundred and twenty- two dollars and fom* cents, for value 

Pleas of non-assumpsit and payment by Pankey ; plea of non- 
assumpsit by Davis, verified by afiidavit. 

Venue changed to Morgan county. 

At the March term, 1855, of the Morgan Circuit Court, the 
suit was abated as to William Pankey, and leave was given to 
Davis to file additional pleas. 

And afterwards, at October term, 1855, of the Morgan Cir- 
cuit Court, the cause was tried by a jury. The plaintiff intro- 
duced a witness, who testified that the signatures of the notes 
were in the hand writing of William Pankey, and then offered to 
read the notes in evidence, to which the defendant objected. 
His objection was overruled by the court, and defendant ex- 
cepted. The notes were then read in evidence, and are signed 
Pankey & Davis. 

Defendant then proved by the same witness, that on the 24th 
July, 1851, William Pankey was in partnership with one Wil- 
liam B. Pankey, and that defendant, Davis, was not in partner- 
ship with William Pankey to his knowledge ; that William B. 
Pankey was his partner until last of September or first of 
October, 1851 ; that Davis lived in Carrolton, and Pankey in 
Whitehall, and carried on business there ; to which evidence 
the plaintiff objected, and his objections were sustained by the 
court and the defendant excepted. This was all the evidence 
offered on both sides. 

The cause was tried before Woodson, Judge. 

Palmer and Pitman, for Plaintiff in Error. 

D. A. Smith, for Defendant in Error. 

Caton, J. This action was upon a promissory note signed 
"Pankey & Davis." The defendants pleaded severally : Pan- 
key non-assumpsit and payment, and Davis non-assumpsit, which 
is verified by his afiidavit. On the trial, the Circuit Court 
held, that this was not sufficient to put in issue the making of 
the note by him, or the existence of the firm of Pankey & Davis, 
by which the note purported to have been executed. In this 
the court erred. The eighth section of chapter forty. Rev. Stat., 
upon which this decision was made, has been twice construed by 
this court, on this very point. Stevenson -y. Farnsworth, 2 Gil. 


Wells v. Head. 

man 715, and Warren -y. Chambers, 12 111. 124. It was there 
held that the affidavit of one of the defendants denying the 
existence of the partnership or the execution of the instrument 
sued on, was sufficient to entitle the party making the affidavit 
to make the defence ; as to him, the case stands upon proof, the 
same as it would had the statute not been passed. Full proof, 
however, is only made necessary by the affidavit as to him. (a) The 
implied admission created by the statute, still exists as to the 
other defendant, who is not entitled to any benefit from the oath 
of his co-defendant, except the incidental benefit which would 
result from the plaintiff failing to maintain the issue as to one of 
the joint defendants. The statute sa3's, that when two or more 
are sued as partners or joint obligors, the plaintifi" need not 
prove the joint liability or partnership, "unless such proof shall 
be rendered necessary by pleading in abatement, or the filing of 
pleas denying the execution of such writing, verified by affidavit, 
as required by law." Here the defendants were sued both as 
partners and as joint obligors, in the sense in which these words 
are used in the statute, and either of the defendants had the 
option to choose which mode he pleased, to deny the joint lia- 
bility. Davies adopted the latter mode provided m the stutute, 
and he was entitled to make his defence under the sworn plea. 
The judgment is reversed and the cause remanded. 

Judgment reversed. 

Lansing S. Wells, Appellant, v. William E. Head, 


In a action of trespass for iujury^to personal property , It is not|error to refuse to 
instruct the jury that if they "have a reasonable doubt ot the guilt of the defend- 
ant, they must tiud for him. Such a case depends upon the preponderance 
of the evidence ottered and its credibility. 

This was an action of trespass, for shooting a mare, of which 
shooting she died. The declaration is in the usual form, and a 
plea of general issue, and change of venue from Madison county 
to Jersey county for trial. 

Upon the trail of the suit before a jury, the plaintifi" below 
introduced evidence tending to prove the defendant guilty of 
the trespass as alleged. 

After the closing of evidence, the defendant asked the court 
to give the following instruction: "The court is requested to 

[a] Kurd vs. Haggerty, 24 Dl. R. 174, Gordon vs. Bankard, 37 Ul. E. 147; Degau 
vs. biuger,41Id. 2S. 

DECEMBER TERM, 1855. 205 

Wells V. Head 

instruct the jury that if they have a reasonahle doubt of the 
guilt of the defendant, they must find for the defendant," which 
instruction the court refused to give and defendant below 

The jury returned a verdict for the plaintiff for $180.66, and 
the defendant asked for a new trial, which was denied. 

The defendant prayed an appeal. 

The appellant assigns the following errors : 

1st. The court refused to give to the jury the instruction as 
asked for by the appellant. 

2nd. That the court refused set aside the verdict of the 
jury and grant a new trial. , 

This cause was tried before Woodson, Judge, at May term 
1855, of the Jersey Circuit Court. 

S. T. Sawyer, for Appellant. 

H. Billings and J. Gillespie, for Appellee. 

Caton, J, Unless we are inclined to overrule our decision 
in the case of Webster v. The People, 14 111. 365, this judg- 
ment must be affirmed. In that case this question and the 
whole of it is expressly decided, and in a stronger case than 
this. That was an action of debt on a penal statute brought in 
the name of the State. This is a mere action of trespass 
brought by one citizen against another. There is no reason 
why the proof should be any stronger in this case than as if the 
action were trover, replevin or detinue, or even a simple action 
of assumpsit. It is a simple question of right between two men. 
One asserts a right which the other denies. The question is, in 
whose favor is the balance of proof ? Does the plaintiff con- 
vince the judgment that the right which he claims is wiih him, 
or that the defendant has done him the injury of what he com- 
plains ? If it is proved by the same measure of evidence which 
would be sufficient in any other civil controversy, that is suffi- 
cient. The Circuit Court committed no error, and the judgment 
must be affirmed. 

Skinner, J. The trespass alleged in the plaintiff's declara- 
tion does not amount to a charge of crime, or aver facts consti- 
tuting in law a crime. Crime therefore not being directly 
imputed to the defendant, no presumption of innocence is 
involved, and a preponderence of evidence is sufficient to sus- 
tain the verdict. 

Judgment affirmed. 


Loomis et al. v. Francis. 

William Loomis and Thomas G. Taylor, Pkiintiffs in 
Error, v. Josiah Francis, for the use of Charles R. 
Pierce, Defendant in Error. 


Upou an application to amend,tlie record of jiidgment, by making anew party, 
such party when brought into court, shouki be ruled to plead, before he is 
adjudged. Nor should the judgment be entered nunc pro tunc, so as to give it 
any retroactive eii'ect. 

This was an application to the Circuit Court of Sangamon 
county, to make one Thomas G. Taylor a party to a judgment, in 
the case of Josiah Francis, sheriiF of Sangamon county, for the use 
of Charles R. Pierce, against William Loomis and the said Thomas 
G, Taylor, entered at August term, 1851, of the said court, so 
that the judgment should be against both, &c. This application 
was founded upon the affidavit of Pierce, stating that his attorney 
in the suit against Loomis and Taylor, had released Taylor from 
his consent or knowledge, and that he remained in ignorance 
that the judgment had been so taken, until a short time prior to 
the application to correct the judgment, nor until after two exe- 
cutions had been returned," no property found." The affidavit 
also stated that the attorney who released Taylor was unmar- 
ried, was without means, and absent from the State, and that 
recourse to him would be useless, A counter affidavit was filed by 
Taylor. Proofs were taken by the court, Davis, Judge, pre- 
siding, at March term, 1855 ; when it was ordered, all objec- 
tions to the form of the remedy sought by Francis for the use of 
Pierce, having been waived, that the judgment of August term, 
1851, be so amended \nunc pro txLnc^'\ as that the name of Tay- 
lor should be inserted therein. To correct this order, Taylor 
sued out his writ of error and brings the case here. 

LmcoLN and Herndon, for Plaintiffs in Error. 

Stuart and Edwards, for Defendant in Error. 

Caton, J. The court undoubtedly erred in rendering the 
summary judgment which it did, and also in entering the judg- 
ment nu7ic p7'o tunc. When Taylor was brought into court, he 
should have been ruled to plead, and thus given an opportunity 
of making his defence to the merits, and upon his failing to com- 
ply with such rule, he might have been defaulted, as in other 

DECEMBER TERM, 1855. 207 

Reynolds v. Thomas et al. 

Nor should the judgment in any event have had a retro- active 
operation. Bj doing so, subsequent purchasers from Taylor 
might be affected. The only object which we can perceive in 
entering the judgment, munc pro tunc, was to make it a lien on 
Taylor's estate, from the date of the judgment against Loomis, 
for the purpose of cutting out intermediate purchasers and incum- 
brancers. That purpose was illegal and unjust as to them, for 
they are entitled to be protected from any embarrassemt which 
this judgment might create, although they are not parties to this 
proceeding. Indeed, for that very reason, no judgment should 
be entered which might prejudice their rights. 

The judgment is reversed and the cause remanded. 

Judgment re'V)ersed. 

John Reynolds, Plaintiff in Error, n. Amos B. Thomas 
et al., Defendants in Error. 


An act of forcible entry and detainer cannot be maintained against two or 

more, who hold in severalty. 
Courts of law will not take cognizance of separate causes of action against 

ditterent parties in the same suit. 

This was an action of forcible entry and detainer, commenced 
by the plaintiff in error before a justice of the peace, in Eulton 
county, against the defendants in error, where there was a trial 
by jury, who found a verdict of not guilty. On this verdict 
ihere was a judgment for costs against the plaintiff, from which 
he appealed to the Circuit Court. 

At the October term, 1855, before Thompson, Judge, pre- 
siding, a motion was for first time entered to dismiss the 
suit, because of the insufficiency of the complaint, which motion 
was sustained, and the suit dismissed, to which the plaintiff 
excepted. Judgment was rendered in Circuit Court against the 
plaintiff, and he now brings the case to this court by writ of 

The only error assigned is that the Circuit Court erred in 
dismissing the suit. 

The complaint charges that the plaintiff was, on the first day 
of April 1855, and had been for several months prior thereto, 
in the actual, peaceable and exclusive possession of a town lot 
described in the complaint, and of a two story brick building 
thereon ; that the plaintiff was the owner, and entitled to quiet 


Reynolds v. Thomas et al . 

and undisturbed possession ; that while the plaintiff was in such 
possession, Joshua R. Breed, alone or in concert with Caleb S, 
Hall, forcibly, violently and without right, entered upon the 
possession of the plaintiff, and forcibly, violently and wrongfully 
ousted the plaintiff from the possession of the lot and building ; 
that the said Breed, John Kellj; and Lorenzo Bolton, conspiring 
together to keep the plaintiff out of possession, leased the lower 
story of the building to Amos B. Thomas and Harvey Gaylord, 
(two of the defendants,) and the upper story to Benjamin Wells, 
for Harriet Wells, (the other defendant;) that the defendants 
thereby entered into the actual possession, were in possession 
when the complaint was made, and refused to surrender it on 

The complaint then avers that the defendants, before and at 
the time they leased and took possession of the premises from 
Breed, Kelly and Bolton, each knew that the plaintiff was in 
possession at the time of the forcible entry, and had been prior 
thereto ; that one of them had been a tenant, and surrendered, 
on the evening before, to the plaintiff; and that they hold as 
tenants, and maintain the possession of Breed, Kelly and Bol- 
ton so obtained by force. 

J. K. Cooper and Goudy and Judd, for plaintiff in Error. 

W. Kellogg, for Defendants in Error. 

Skinner, J. This was an action olfocible entry and detainer. 
On motion of defendants beloAV, the court dismissed the suit for 
want of a sufficient complaint, and this decision is assigned for 

The complaint alleges that on the first day of April, 1855, 
the plaintiff was the owner and in the actual possession of a 
certain town lot [decribing it], and a two-story building there- 
on ; that while so in possession, one Breed forcibly entered and 
turned the plaintiff out of the possession thereof ; that said 
Breed and others (named), conspiring together to keep the 
plaintiff out of possession, leased the lower story of the building 
to Amos and Harvey Gaylord, and the upper story to one Wells, 
and that they entered and hold possession against the plaintiff 
after demand, &c. ; that defendants, at the time of taking their 
leases and taking possession, knew of the forcible entry of Breed, 
and hold under and maintain the possession of Breed. 

The complaint shows that the defendants entered into and 
hold separate portions of the building in severalty, and not in 
common ; that they entered and hold under separate leases and 
distinct portions of the premises. An injury to or disturbance 

DECEMBER TERM, 1855. 209 

Trustees of Schools v. Douglas. 

of the possession of one tenant would not give an action there" 
for to the other, nor to all of them jointly. 

Their interests and possessions are distinct, and the portion 
occupied by each tenant is as much his castle in law as if in a 
separate building and on different ground. This being an action 
in tort the plaintiif could have entered a nolle prosequi and so 
have avoided the misjoinder, but not chosing to do so, and the 
misjoinder appearing fi'om the complaint, the court properly dis- 
missed the court. 

In this case the complaint shows two distinct causes of actions, 
each against different persons, and all are sued jointly. 

This is not like a case where the parties go to trial without 
objection, and there is a special finding as to each defendant ; 
but the objection is taken in nature of a demurrer, and the error 
appears upon the plaintiff's own showing. 

The following cases hold — under a statute similar to ours — that 
an action of forcible detainer cannot be maintained against two 
or more who hold in severalty: Kerr z;. Phillips, 2 Southard's 
R. 818 ; Snedeker v. Quick, 7 Halstead 129. 

Courts of law will not take cognizance of separate causes of 
action against different parties in the same suit. 1 Chitty'sPh 
73 ; ibid. p. 1. 

Judgment affirmed. 

Trustees of Schools of Township Sixteen north, of 
range nine west, Appellants, v Stephen A. Douglas 
et al.y Appellees. 


The several acts of the General Assemljly since 1839 have kept alive the succes- 
sion in the several officers appointed as agents for the inhabitants ; and the- 
present trustees may sue and recover upon a judgment in favor of a school 
commissioner which was rendered at that time. 

On the 30th August, 1836, the appellee, A. Brockenborough, 
•and J. McKinney, made their note at one year's date to John T. 
Jones, then school commissioner and agent for the inhabitants of 
said county for the use of the inhabitants of T. 16 N., R. 9 W., 
for $50, and a judgment was rendered by the Circuit Court 
of said county against the makers of said note, at the suit of 
said Jones, as school commissioner, on the 28th June, 1839, for 
debt, damages and costs. At the October term, 1854, of said 

ILL. REP — xvn. — 13 


Trustees ot Schools v. Douglas. 

court, appellants sued the applee and McKinney in debt on 
said judgment to revive the same, copying the note on which 
judgment had been rendered, in the declaration, averring the 
death of Brock enborough. and the non-payment of the judg- 
ment. Summons returned not found as to McKinney, and service 
acknowledged by the appellee. At March term, 1855, he filed 
a demmrrer to the declaretion, which was sustained by the court, 
Woodson, Judge, presiding. 

D. A. Smith, for Appellants. 

M. McCoNNEL and W. A. Turney, for Appellees. 

Caton, J. The original judgment was obtained in 1839, by 
Jones, as school commissioner, and agent for the inhabitantis of 
the county, for the use of the inhabitants of this particular town- 
ship, in pursuance of the laws as they then existed. The legal 
title to this judgment continued in the school commissioner till 
the passage of the act of the 26th February, 1841, which trans- 
ferred the legal title in the judgment to trustees of schools who 
were authorized to be elected by that act. Here the legal title 
rested till the passage of the law of 1845, which, in the forty- 
third section, transferred it to other trustees authorized by that 
act to be elected. Thus it remained till the passage of the 
school law of 1847, when it was again transferred to other 
township trustees, authorized to be elected by that act. The 
law was again altered in 1849, when other township trustees 
were authorized to be elected, who are declared to be successors 
to the several trustees authoized to be elected by the before 
mentioned laws, and vesting in them , all rights of property, 
and rights and causes of action, existing or vested in the trus- 
tees of school lands, or trutees of schools as successors, in as 
full and complete a manner as was vested in the school commis- 
sioners, the trustees of school lands, or the trustees of schools 
appointed or elected as aforesaid." During all these several 
transfers of this judgment it remained upon the record of the 
court, without, so far as appears, any steps being taken to col- 
lect it. It still stood in the name of the school commissioner, 
in whose favor it was rendered, till", by the last act, it was trans- 
ferred to the present plaintiffs, by whom this action was brought 
in their corporate capacity, upon that orignal judgment ; and 
the only question presented is, their right to bring or maintain 
the action. I cannot discover the least objection to their legal 
right to do so. If the legislature had power to pass the several 
acts transferring the legal title to the judgment, in the manner 
iJoove stated, there is no room left to doubt their right to bring: 

DECEMBER TERM, 1855. 211 

Trustees of Schools v. Douglas. 

the action ; and their power to do this was not even denied upon 
the argument. These were all municipal corporations created 
for school purposes ; and this judgment, and other property, 
vested in them, was public property for the use of schools. And 
this, as well as the corporations in which it was vested, was 
necessarily subject to legislative control and disposition. The 
complete authority of the legislature over such subjects has never 
been doubted, and probably never will be, seriously. 

If, as was contended, the corporation by which the action was 
commenced, was, pending the action, by a subsequent law, 
repealed out of existance, and was succeeded by another created 
by that act, I find no such law ; but if it was as contended, the 
new corporation was of the same name, and possessed the same 
powers, rights and jurisdiction as the old and it became its duty 
to prosecute the action to a determination in the same form and 
mode, and in the same name, so that no change in the name of 
the plaintiff was required to be made on the record. Besides, 
even if there had been a change in the name of Jhe corporation, 
the objection should have been made by a plea in abatement jowzs 
darrein continuance, and not by general demurrer. 

We think the demurrer was improperly sustained ; and the 
judgment must be reversed, and the cause remanded, with leave 
to the defendants to plead to the merits. 

Judgment reversed. 

DissENTESiG Opinion by Sionner, J. The judgment sued on in 
this case was rendered in favor of Jones, school commissioner, 
&c. He was the plaintiff in the action, and in whose name the 
recovery was had. The legal title and interest in the judgment 
was in him alone, although he might have no equitable or bene- 
ficial interest therein. The legal title in and right of action at 
law upon this judgment was vested in, and upon his death 
would pass to his personal representatives, in exclusion of those 
having the equitable or beneficial claim ; and so they would 
remain until some law should give to another the right of action, 
and those having the beneficial interest could sue upon it alone 
in the name of the plaintiff in the record — Jones — or his per- 
sonal representatives. The successor of Jones, as school com- 
missioner, could not have maintained an action at law upon this 
judgment, either in his own name, or as school commissioner. 
The addition to the name of^'the plaintiff in the record, of " school 
commissioner," &c., does not affect the parties to the action, or 
have any other effect than to indicate who are entitled to the 
proceeds of the judgment, and have the equitable interest in 


Kuflfner v. McConnel et al., and McOonuel^. Ruffner et al 

such judgment. The recovery is still in favor of Jones, the 
plaintiff in the record. 

Though a judgment be recovered by A. for the use of B.. B. 
cannot sue at law upon the judgment, but to maintain the action 
mast sue in the name of A. , in whom the legal title is. Triplett 
V. Scott, 12 111. 137 ; 1 Chitty's Pi. 2 and 3. In none of the 
laws giving trustees of schools the right to sue upon causes of 
action existing in the school commissioner, or in any of the 
school corporations to which they are successor, do I find that 
the right is given, ea:c('jo^ so/ar as such right existed in the 
school commissioner, or in the school corporations to which 
they succeeded ; and the right of action upon this judgment never 
existed in either, and hence, by operation of these laws, could not 
vest in the present trustees of schools. Laws of- 1841, 275, Sec. 
62 ;Laws of 1845, 61, Sec. 43 ; Laws of 1847, 127, Sec. 39 ; 
Laws of 1849, 162, Sec. 39. 

For these reasons I think the judgment of the Circuit Court 
should be afiBrmed. 

Lewis Rutfner, Plaintiff in Error, i). Murry McConnel 

et al., Defendants in Error ; and 
McCoNNEL ?). Ruffner et al., on Cross Bill. 


A mistake in fact may be a ground for equitable jurisdiction, if the mistake is 
made to appear satisfactorily. Butthis does not extend to mistakes in the law 
of the contractjOr in the intention of one of the parties, or the mistakes of le- 

' gal terms agreed upon between the parties, without fraud. 

One partner has not the power to convey the realty of the lirm by deed or as- 
signment, nor make contracts about it specifically enforcible against the others. 

LanXls belonging to a partnership are liable for payment of its debts, and go in- 
to joint account on settlement of profit and loss ; but they must be conveyed 
in the mode recognized for the transfer of real estate. 

PtUFFNER states, in his bill, that, for value received of Fielder, 
as general agent of Kanawa Salt Company, on 29th Aug., 1842, 
for consideration of $400, a deed was executed and acknowl- 
edged, on same day, at Naples, by Vansyckel and wife, and Mc- 
Connel and wife, two days afterwards at Jacksonville, toFeilder, 
for a tract of land in Scott county ; Vansyckel and McConnel 
a-nd Avives " covenanting that their heirs, executors and admin- 
istrators will warrant and defend title to said premises, and to 
every part thereof, to him, the said party of the second part 


Ruffner v. McCormel et al. and McConnel -v. Ruffneretal. 

his heirs and assigns forever, against the lawful claim or claims 
of all and every person or persons whatsoever, claiming or to 
claim the same or any part thereof ; " that it was the intention 
to execute a general warranty deed, and that the word " they," by 
inadvertence or mistake, was omitted ; that the contract was for 
a general warranty deed, and there was no stipulation for just 
such a deed as was executed ; that Fielder and wife, on 9th 
October, 1853, by quit-claim deed conveyed the land to Rufiher, 
and that deed was ijot recorded until 1853 ; that a chancery 
suit was instituted in Circuit Court of Scott county, in 1847, by 
William Richardson and others vs. McConnel, Vansyckel and 
Fielder and others, which was responded to by them, he relying 
upon the aforesaid deed, and that he was purchaser for a valua- 
ble consideration without notice ; that a decree was had in the 
case, under which the land was sold and conveyed to William 
Thomas, as trustee for complainants, in 1850 and 1861, and that 
sale and conveyance had been reported, and approved by the 
court, and that McConnel and Vansyckel as parties to the pro- 
ceedings, had notice. Ruffner says that title, conveyed to him 
by Fielder, and by McConnel and Vansyckel to Fielder, was not 
warranted and defended, but was evicted by title paramount 
under the foregoing proceedings, and that title to the property 
never was in McConnel and Vansyckel. Ruffner says that his 
title as grantee or assignee of Fielder has been wholly evicted, 
and that McConnel and Vansyckel ought to pay him the con- 
sideration of the deed of 29th Aug., 1842, and six per cent, 
interest from that date, and prays for that I'elief , or such relief . 
as he may be entitled to in the premises. 

McConnel answers that Ruffner has no right to sue in this 
case ; that Fielder had only an equity to correct mistake, which 
was not transferable ; that Fielder had no right to recover the 
purchase money — could only have the mistake corrected — which 
was a personal right, and not assignable ; that Fielder conveyed 
land to Ruffner, by quit-claim deed, for consideration of only 
^1 , and that Ruffner had no right in law or equity to assert any 
claim under the covenants of the deed of Aug., 1842 ; that 
admitting the allegations of the bill to be true, the remedy, if 
any, is at law ; that the bill is not for discovery and relief, but 
for relief only, and is cognizable only in a court of law for vio- 
lation of contract, and a prayer for discovery only could give 
the court jurisdiction — and insists that the suit be dismissed ; 
that the land was sold at sheriff's sale, and bid off by Vansyckel, 
(who paid for the same,) in name of McConnel and Vansyckel, 
without knowledge, consent or authority from McConnel, and 
that his name was put in certificate of purchase by mistake. 


KuflFner v. McConnel et al., and McConnel v. Ruffiier et al. 

When tlie facts were ascertained, Vansyckel urged sheriff to 
make deed to McConnel and Vansyckel, and that when he( Van- 
syckel) sold it, only quit-claim deed would be required of Mc- 
Connel ; and so he agreed upon no other conditions to the use 
of his name. Some time after the sheriff's deed was made, Van- 
syckel sold the land to Fielder, but of the terms McConnel says 
he knows nothing ; that the deed in question was drawn by an 
agent of Fielder, and executed by Vansyckel and wife at Naples, 
and sent to McConnel to Jacksonville to execute, and he took it 
to Naples to get explanation of Vansyckel, and learned from 
him that he had negotiated sale of land to Fielder through 
agent in St. Louis, and he (Vansyckel) told the agent that title 
to land was good, and was in McConnel and Vansyckel ; that 
McConnel had no interest in it and never had any, and he would 
not make a warranty deed ; that agent examined title, and 
found it good ; that agent informed Vansyckel that the deed in 
question was mere quit- claim deed ; that McConnel then examined 
the said deed, and finding there were no covenants against him, 
and being strongly urged by Vansyckel, reluctantly signed and 
acknowledged the deed when he returned from Naples. Mc- 
Connel denies the sale of the land, for any consideration, to 
Fielder, as wholly untrue ; and denies that he contracted for 
warranty deed, or any deed with covenants, or that any such deed 
was intended, or that anything was left out of the deed by mis- 
take, or that there was any mistake, and demands proof. 

Vansyckel answers as McConnel does, so far as the jurisdic- 
tion of the court is concerned ; and, furthermore, says that Fielder, 
in 1852, unsuccessfully impleaded McConnel and Vansyckel, in 
an action of covenant in the Circuit Court of Scott, on the cov- 
enants of the deed sought to be corrected in this case, and that 
\udgment in the covenant case is in full force, &c., and is a bar 

< any proceeding in this case, and answers in other particulars 
substantially as McConnel's answer has been set forth. 

Replication was filed to these answers. 

McConnel exhibits cross bill against Fielder, Ruffner and Van- 
sickel, amplifying statements of his ansnwer — quotes the cove- 
nants in the deed sought to be corrected this case, and charges 
that the covenants should have been mere quit-claim covenants, 
and that the covenants in the deed were inserted by fraud or 
mistake ; that the deed be corrected, and theat eh and his heirs, 
&c., may be protected from further annoyance by injunction. 

Ruffner and Fielder answer the cross bill, quoting from cer- 
tain records and procee dings that McConnel, by stipulation at 
the end of the answer, admits to be true, denyingall the allega- 
tions of the cross bill inconsistent with the or nal bill ; and 

DECEMBER TERM, 1855. 215 

Ruffner v. McCoimel et al. , and McConnel v. Rufl'ner et al. 

they jointly and severally pray that Ruffner may have the relief 
he asks in his original bill. 

Replication filed to the answer. 

Stipulation made at October term, 1853, admitting verity o£ 
allegations as to matters of record in the Circuit Court of Scott, 
and waiving the production of trascripts. 

Fielder testifies that he is well acquainted with Ruffner and 
Vansyckel, and slightly acquainted with Mc Connel ; that the 
consideration of the deed was $400, paid, at the date of the 
deed; by a credit on certain protested acceptances of McConnel 
and Vansyckel, which the witness held as agent of a salt com- 
pany, on account of sales of salt by McConnel and Vansyckel. 
The deed was drawn by L. Spencer, a lawyer of St. Louis, (since 
deceased,) whom witness employed to go to Illinois to inves- 
tigate title and have transfer legally made. No stipulation or 
arrangement Avith McConnel and Vansyckel other than general 
warranty deed, and directed agent to take no other. McConnel 
and Vansyckel never proposed any other, and when the deeds 
came into the hands of witness, he looked them over as to quan- 
tify of land, .considerations, &c., and had not been apprized, 
uncil recently, of the absence of personal covenant in the deed 
in question in this case. Witness wrote but seldom to McConnel 
and Vansyckel ; generally called in person to settle accounts. 
They were trading at Naples for several years, and sold a large 
quantity of salt for Hewitt, Ruffner & Co. 

Decree dissmises original and cross bills. 

Errors assiged : 

1st. That the original bill was dismissed. 

2nd. That the court below did not grant appellant the spe- 
cific relief prayed for in his bill, 

3rd. That the court below did not decree correction of mis- 
take, in deed of appellees to Fielder, by adding the word "they" 
to covenant of warranty. 

The decree in this case was rendered at October term, 1851, 
of the Morgan Circuit Court, Woodson, Judge, presiding. 

D. A. Smith, for Plaintiff in Error. 

M. McConnel and J. Grimshaw, for Defendant in Error. 

ScATES, C. J. The bill seeks to correct a mistake of fact, 
alleged to have been made by omitting to insert the word " they " 
in the covenant of warranty in a deed of conveyance, so as to 
make it a personal covenant of the vendors ; and thereupon, for 
relief by decree for the purchase money, with interest, on breach 
of the covenant so reformed, by recovery from vendors and ven- 


liufiner v. McConnel et al., and McCounel v. Eufluer et al. 

dee, by paramount title, in a case in equity, to which all were 
parties defendants. 

We do not think the record shows a case for the interposition 
of a court of equity. We recognize a mistake in fact as a 
ground for equitable jurisdiction ; but relief will only be granted 
upon clear and satisfactory proof of the mistake in fact Harris 
et al. D. Reece et al., 5 Gil. R. 212 ; Selby «. Geines, 12 111. R. 
69 ; 1 Story Eq. Jursip., Sees. 110, 151, 152, 153. 

But this does not extend to mistakes in the law of the con- 
tract, case, or legal meaning of the terms agreed on between the 
parties, without fraud. 1 Story Eq. Jursip., Sees. Ill, 115 ; 
Beebe i). Swartwout, 3 Gil. R. 162. Nor to mistakes in the 
intention of one only of the parties, and without fi'aud in the 
other. Coffing ei al v. Taylor, 16 111. R. 457. 

We may admit, without discussion of the evidence, that a mis- 
take has been shown as to the kind of covenant Vansyckel 
intented and agreed to enter into, and that the deed of both 
should contain ; yet the evidence shows that McConnel did not 
agree personally, bat, on the contrary, expressly refused to enter 
into a covenant of warranty. Defendants were partners, and 
liable as such for the debt which was paid with the land, not- 
withstanding the private agreement between them that Van- 
syckel should pay all the debts, and be liable therefor. Although 
this land was transferred to, and the title held by, the partners, 
and liable to partnership debts, yet the plaintiff's abstract equity 
against McConnel is weakened by the fact that it was the private 
transaction, if not the private property, of Vansyckel, and take 
in the names of both at his instance, and without McConnel 's 
knowledge, and who only afterwards consented to transfer or 
convey, that the property might pass out of him again for what 
it might be worth. 

The solution of the facts in this case, however, depends upon the 
legal power of one partner, generally, to convey or make such 
contracts, verbal or written, as will pass the title of real estate 
belonging to the firm or which maj be specifically enforced in 
equity, by compelling the other partner to execute a conveyance, 
with or without particular covenants, or by decree for such a 
conveyance by a commissioner of the court. This would be the 
result, if the power exists in each partner to bind the other in 
relation to the reality. I do not speak of such contracts in rela- 
tion to the liability of partners for damages for their breach, but 
in relation to specific execution of them, and conveyance by 
one, for all the partners. 

In this point of view, under the law governing partnerships, 
one partner has not the power to convey the real estate of the 
firm, either by deed or assignment ; nor make contracts, written 

DECEMBER TERM, 1855 217 

Rufiuer t'. McConncl etal., aud McConnel «, Ruflner et al. 

or verbal, specifically enforcible against the others. Colljer on 
Part., Sees. 135 and notes, 394 ; Story on Part., Sec. 101 and 
notes; Story on Agency, Cap. 6, Sec. 125; Piatt -y. Oliver et 
al., 3 McLean R. 28. See Tapley v, Butterfield, 1 Metcalf R. 
515; Deckardz'. Case, 5 Watts R. 22; Sloo -y. President, &c., 
State Bank of Illinois, 1 Scam. R. 428. 

Lands belonging to the partnership are nevertheless equally, 
with the personalty, liable to the payment of the debts of the 
firm, and will go into the balance of account between the part- 
ners on settlement of profit and loss. See same authorities. 
But in the transfer of lands, the rules applicable to the convey- 
ance and descent of realty are to be observed, as they are not 
modified by the nature of the ownership ; nor have partners, 
under the law of partnerships, an implied power, individually, 
for the firm to do what may be done by a court of equity in 
paying creditors, or adjustmg balances between the partners. 
They must observe all the solemnities, and convey in the modes 
recognized by law for the transfer or conveyance of real estate. 
By these, a co- partner, joint-tenant, or tenant in common has no 
power to bargain, sell or convey the real estate, or interest in 
it, of his co-tenant. The agreement of Vansyckel, as partner, 
was not, therefore, obligatory upon McConnel to make any kind 
of conveyance of this land, eith er in law or equity. The plain- 
tiff' should have protected himself by refusing to take any other 
than such a conveyance as suited, or would protect his title. 
Upon defendant's declining to give a warranty, he should have 
refused to receive the one tendered ; and if he had any personal 
remedy against the firm, for damages for breach of such an 
agreement by one partner — upon which Ave express no opinion — 
he should have brought his action upon the contract for breach 
and not a bill for specific execution. ? 

The right to a decree is very questionable, upon another 
ground, even against Vansyckel alone, upon any covenant in, 
or that shou Id have been in, this deed as to him ; for he alone 
might have made his covenant of warranty in it, had it been 
asked and required. 

The plaintiff has brought his action of covenant on this very 
covernant, for a breach, against both defendants, and suffered a 
recove ry against him for costs, and which has been affirmed in 
this c ourt. Ruffner -y. McConnel et al., 14 111. R. 168. 

We are not able to distinguish the case in principle, if it be 
at all in the facts in this respect, from the case of Sibert v. 
McAvoy, 15 El. R. 106, where the plaintiff first sued upon the 
contract at law, and after judgment ; then filed his bill to reform 
the contract by correction of an alleged mistake. The court 
held that the contract was merged in the judgment, and there 
was no contract left to be reformed or corrected. 


Woods V. Gilson. 

Under tliis view of the case, we need not examine into the 
question whether the recovery in equity against warrantors and 
warrantee, by paramount title, is suflBcient showing of a breach, 
without further actual eviction. 

Decree affirmed. 

Skinner, J, I agree that Vansyckle could not bind McCon- 
nel, his co-partner, to execute a deed with covenants of general 
warranty, and that upon this record the decree should be affirmed. 

Brewer Woods, Appellant, T). James W. Gilson, Appellee. 

To disqualify a deputy sheriff from serving an execution, either he or his princi- 
lial must have been x:)laintiff in action, entitled to the money to be made by a 
sale under it, or have a direct interest in the process. 

Where a third person, after execution issued, pays off a mortgage given by the 
judgment debtor, and takes possession of the ^oods and sells them, they will 
still be subject to the execution. The satisfaction of the mortgage by the third 
parly did not invest him with any interst in the mortgage debt or the mortgaged 

TiiE^facts of this case will be found in the opinion of the 

J. M. Palmer, for Appellant. 

D. A. Smith, for Appellee. 

Skinotir, J. Wood sued Gilson inr eplevin. The defendant 
pleaded in bar that Dorothy Jones recovered in the Circuit 
Court of Macoupin county a judgment against Watts and 
Arbuckle, on which an execution issued to the sheriff of Macou- 
pin county ; that the same came to the hands of the defendant 
as deputy sheriff to execute ; and that the property replevined 
being subject to said execution as the property of Watts, he 
took and seized the same by vn-tue of the execution. 

To this plea the plaintiff replied, first : That the property 
replevined was not subject to the lien of the execution ; and 
second : That the defendant was not deputy sheriff. 

Upon these replications issues were joined. The plaintiff 
also replied, that Dorothy Jones had, before a justice of the 
peace of Macoupin county, recovered a judgment against Watts 

DECEMBER TERM, 1855. 219 

"Woods V. Gilson. 

and Arbuckle, from which judgment Watts appealed, and that 
the defendant became his security in the appeal bond ; that said 
judgment was. affirmed by the Circuit Court of Macoupin county, 
and is the same judgment in the defendant's plea alleged ; that 
thereby the appeal bond became forfeited and the defendant 
became liable to pay the said Dorothy Jones the judgment in 
the plea alleged ; and that the defendant was appointed at his 
own instance deputy sheriff for the sole purpose of executing 
the writ. 

To this replication the defendant demurred, and the court 
sustained the demurrer. The object of this replication was to 
avoid the levy, on the ground, that the defendant, as deputy 
sheriff, could not execute the writ on account of interest, he 
being security for Watts in the appeal bond. This is not such 
direct legal interest in the process as would render him incom- 
petent to execute it. 

He was not plaintiff in the execution, nor Avas he entitled to 
the proceeds of the sale to be made thereon. 

To have disqualified him to execute the writ he or his prin- 
cipal must have been plaintiff in the action of which the execu- 
tion was a consequence, or must have had a direct interest in 
the process, or a right to the moneys to be made by sale under 
it. None of the cases cited go farther than this. J. McCord 
470 ; C. Monroe 173 ; 3 A. K. Marshall 536. 

The demurrer was therefore properly sustained. 

The cause was tried by the court and judgment rendered for 
defendant below. Motion for a new trial made and overruled. 
The com't properly refused a new trial. It was clearly proved 
that the defendant at the time of the levy was deputy sheriff. 
The proof shows that Watts was the owner of the property and 
mortgaged the same to Bently ; that Bently took possession of 
the property under the mortgage before the execution lien could 
attach ; that Campbell, while the execution against Watts was 
in the hands of the defendant, tried to purchase the mortgage 
of Bently ; that Bently refused to sell and assign the same ; 
that Campbell then paid the mortgage debt and Bently indorsed 
the mortgage satisfied, and delivered the same and the property 
mortgaged to Campbell : that Campbell sold the property to 
Loveland & Co., who sold the same to Wood, the plaintiff 

By the payment of the mortgage debt the property became 
discharged from the mortgage, and was liable to be levied upon 
as the property of Watts, the mortgage and execution debtor. 
By such payment Campbell could acquire no property in the 
mortgage debt nor in the thing mortgaged, whether done with 
or without the consent of Watts. The property became subject 


Cadwellti. Meek etal. 

to the lien of the execution when discharged from the mortgage, 
and was rightfully levied upon in the hands of Wood, who had 
obtained no better right to it than Campbell had acquired. 

Judgment afflrmed. 

Lorenzo Cadwell, Appellant, -». Daniel Meek et al.^ 



An agent is a competent witness to establish his relation to his principal, and a 
contract made for him, unless the a^ent has a direct interest in the result of the 
suit..Ifan agent is equallv liable to either of the parties, he is a competent wit- 
ness, and his supposed preferences will atfect his credibility only. 

To bind the principal by the acts of his autnt. \\o nui*t he fully and fairly informed 
of all the material facts and circumstances of the transaction. 

The usual course of dealing by a party , jcannot vary or control a contract. 

This suit was commenced in the Fulton Circuit Court, by 
attachment, to recover $1,758.23, the price of sixty-two head of 
beef cattle. Declaration in assumpsit, containing the common 
counts. On the return of the attachment, the defendant below, 
(appellant in this court) appeared and plead the general issue. 

The cause was tried at the May term, 1855, Hon. 0. C. Skin- 
ner, presiding, by a jury ; verdict Avas found for the amount 
claimed by the plaintiffs below, (appellees in this court.) Mo- 
tion made for a new trial, and overruled, and judgment ren- 
dered on the verdict. The defendant below brings the cause 
here by appeal. 

On the trial in the Circuit Court, the plaintiffs claimed : that 
one Ezra Cadwallacler Vi^as the agent of the defendant ; that they 
sold to him, as such agent, the beef cattle, for the price of which 
they sued ; that the price was agreed on by the plaintiffs and the 
agent ; that the money was to be paid on the delivery of the cat- 
tle to the defendant ; and that the cattle had been weighed, de- 
livered to, and accepted by, the defendant, he knowing that Cad- 
wallader had acted as his agent in the purchase. 

The defendant admitted that he had received the cattle, and 
that they were worth the amount claimed by the plaintiffs, and 
that Cadwallader purchased the cattle, yet he denied that Cad- 
wallader ivas his agent ^ or had any authority to contract for 
hi m with the plaintiffs, so as to make him liable to them, or that 
h e received the cattle, knowing that Cadwallader had assumed 
to act as his agent ; but on the contrary, the defendant claimed 
hat Cadwallader purchased cattle of whom he pleased, on his, 


DECEMBER TERM,1855. 221 

Cad\ve]l -y. Meek et al. 

own terms, and at his own risk, and re-sold them to the defend- 
ant at an agreed price ; or in other words, that Cadwallader 
was liable to the plaintiffs, while he, Cadwell, was liable to 
Cadwallader. The defendant father claimed, that he had an 
offset against Cadwallader for an amount more than sufficient to 
pay the price of the cattle, and hence, that he was not indebted 
for them to any one at the time suit Avas brought. 

The defendant further claimed, that there was a custom under 
ivhich Cadwallader had acted for him, and under which he, the 
defendant, received the cattle, and insisted that all his statements 
and acts were explained, by, and consistent with, that custom. 
This custom was, that large dealers in the products and trade of 
the country had dealings mainly with certain persons, called 
runners or buyers, who were not agents, but who examined and 
bought from the farmers and country merchants the articles 
wanted, on their own terms, and at their own risks, and then 
furnished them to the larger dealers, under a contract entered 
into before, to receive a certain amount at some agreed price ; 
and that it was also a part of this custom, that the large dealers 
should furnish money to the runner, in advance, wholly or partly, 
on delivery of the property, or otherwise, from time to time, 
depending on the understanding of the parties, in order to ena- 
ble him to secure the best bargains : but that there was no bind- 
ing obligation to furnish the money in advance. Thel egal 
effect of the transaction between the wholesale dealer and his 
retail buyer, being that the property was to be paid for on de- 
livery, and that the wholesale dealer never became liable to the 
various persons about the country, from whom the runner might 
choose to pui'chase. 

On trial of the cause in the Circuit Court, Moses F. Hand 
was sworn, as a witness for the plaintiffs, who testified that he 
resided in Warren county : that Ezra Cadwallader lived in Ellis- 
ville, Fulton county, on the way from Liverpool, in the same 
county, to the residence of the witness ; that the defendant had 
been engaged for the three preceding seasons (years), in pack- 
ing beef at Liverpool, on the Illinois river ; that the witness had 
furnished the defendant with beef cattle during that time, which 
the witness raised and bought for that purpose ; that he had not 
acted as defendant's agent, but that he first made a contract 
with the defendant to furnish the cattle on certain terms, and 
deliver them at the packing house in Liverpool ; then he bought 
them of whom he could, on the best terms he could, running all 
risks till delivered, taking any profits over the price he paid for 
himself, and was entitled to the agreed price from the defendant ; 
that the defendant let him have money, as suited the conve- 


Cadwell v. Meek et al. 

nience of both parties, and was not responsible to the person of 
whom the witness bought. 

The witness also stated, the defendant had repeatedly told 
him, that whatsover Underhill Boynton said, with reference to 
buying cattle, was right, and that Boynton had acted as the 
agent of the defendant in htiying cattle for the defendant, during 
the time he had done business at Liverpool ; but that the defend- 
ant had never informed him that Boynton had authority to 
appoint other agents for the defendant, and that he had no 
knowledge of his ever doing so ; that he knew no other agent 
of the defendant than Boynton. 

The witness^testified to a contrast made by himself with the 
defendant, through Boynton, in the fall of 1854, audits contents, 
during which it was disclosed that the contract was in Avriting. 

Anson Smith was sworn for the plaintiffs, and testified that 
Underhill Boynton, a short time prior to buying of the cattle in 
controversy, called at his office in Ellisville, to see Ezra Cailwal- 
lader, who was absent at Chicago; that Boynton left word 
with the witness, to deliver to Cadwallader, on his return, 
as follows : to tell him that they wanted some beef in a 
hurry, and for him to buy ; that he would give them a certain 
price, (not recollected by the witness,) per 100 lbs, for cattle 
delivered at Liverpool ; or if he did not want to buy on those 
terms, to buy anyhow ; that he, (Cadwallader) could make one 
or two hundi'ed dollars as easy as not ; that they would pay him 
for his service, but nothing said as to how, or what price, and 
nothing said as to pay by the day ; that the witness couled also 
tell Cadwallader, that he could have money from time to time, 
as he needed it or he would send him some immediately. 

The witness further stated that he delivered the message to 
CadAvallader on his return ; that Cadwallader sale he would not 
buy by the hundred — would not lay himself liable — but would 
spend a few days in getting some cattle. 

The witness also stated, on cross-examination, that he never 
informed either Boynton or defendant of Cadwallader's answer, 
and he did not know whether they knew how he acted in the 
purchases made. 

Ezra Cadwallader was called as a witness by the plaintiffs 
and sworn on his noir dire. The plaintiffs admitted that the 
witness was called for the purpose of proving that he was an 
agent of the defendant, and as such, purchased the cattle from 
the plaintiffs, for the price of which this suit was brought. The 
witness stated that he had no more interest than any person 
would have, who acted as an agent ; that he received the message 
from Boynton left with Anson Smith ; that he had no other 

DECEMBER TERM, 1855. 223 

Cadwell v. Meek et al. 

authority from the defendant ; that he bought the cattle as an 
agent, and informed the plaintiffs so at the time. He further 
stated that there was no agreement between himself and the 
plaintiffs that he would pay them for the cattle, if they failed to 
recover in this suit, but that the witness expected to jmy them^ 
as they should not lose by him. 

Objection was made to the introduction of the witness, but 
the court overruled the objection, to which the defendant 

The witness was then sworn in chief, and testified to the 
receipt of the message through Anson Smith from Boynton, sub- 
stantially as stated by Smith ; that he acted on the authority 
given by that message, and bought as the agent of the defend- 
ant, expecting to charge by the day for his services ; that he did 
not see Boynton or defendant till after all the cattle he bought 
were delivered, and when he did see the defendant nothing was 
said as to Boynton's agency. 

Objection was mac e to the introduction of the statements of 
the witness to plaintiffs, as to his authority, and overruled, to 
which there was exception taken. 

The witness tnen stated that he told the plaintiff, that he 
wanted to buy for the defendant, as agent ; that he bought sixty- 
two head of cattle, to be weighed at Ellisville, and that they 
amounted to $1,858.23 ; that he sent them to Liverpool by one 
Sackett, with an order for the money ; that he had received, at 
a previous time, $250, of which he paid $100 to the plaintiffs, 
but received none when he sent plaintiffs' cattle. 

On cross-examination, the witness stated, that Smith told him, 
that the defendant proposed to give $5 per 100 lbs. net, the 
weight to be ascertained at Liverpool' where the cattle were to 
be slaughtered ; that nothing was said to him as to biiyingby the 
gross, on a credit, or as to ascertaining the weight elseivhere 
than at Liverpool in the manner stated. He further stated, that 
\q never informed either Boynton or the defendant that he 
would not buy and furnish beef by the 100 lbs. as proposed. 

The witness further stated, that he bought three lots of cattle 
for the defendant that season, of which the plaintiffs were the 
last, all of which he sent to Liverpool by Sackett. With each 
lot he sent some written statement, signed by Cadwallader & 
Smith (they being partners), of the cattle, with a verbal or 
written order for money ; that the order was not to pay the 
money to the plaintiffs, but to send it to the witness. When the 
plaintiffs' cattle were sent, no money was returned, but a mes- 
sage was sent by Sackett from the defendant to the witness, that 
he had been disappointed in getting money by express, for the 
witness to come down to Liverpool the next Saturday, and st ay 


Cad well v. Meek et al. 

over Sunday ; that he had a settlement to make with him, and he 
should have the money to take back ; that the witness did go 
down as requested, and when there presented an account of ^25 
for five days' services in buying cattle, to which the defendant 
replied, " rather short" : that the next time he bought cattle he 
would have them weiged at Liverpool ; at the same time he 
gave a bill of the cattle from his private memorandum book, and 
the account might have been made out as between Cadwallader 
& Smith, with the defendant ; that at the same time the defend- 
ant and witness looked over a " corn transaction " between the 
defendant and Cadwallader & Smith of two years before. The 
defendant made out an account current, and gave to the witness 
to examine, and claimed over $4,000, due to the defendant, 
which the witness stated was to much, as he did not owe as much 
as ^3,000. The witness also stated that, the defendant did not 
ask him to offset the price of the cattle he had bought, against 
the amount due for corn directly, but " intimated it pretty 
strong," stating that he was in a tight place and needed the 
money, to which the witness replied that he had bought the cat- 
tle with the promise of the money, and he would not use the 
money of the sellers to pay his debts, to which defendant made 
no reply. The witness also stated, that the cattle referred to in 
this conversation, Avas all of the three lots, on which he had 
received f 250- 

The witness then stated further, that he had furnished cattle 
to the defendant for two prior seasons, but not as agent; that 
he bought, sometimes having the money advanced, and then fur- 
nished to the defendant at an agreed price, and so far as he 
knew, all others dealing with the defendant, had done the same 
thing ; that as a country merchant, it was convenient and profit- 
able for him in selling goods, and collecting debts, to take cattle 
and sell them to the defendant. 

S. D. Sackett was then sworn for the plaintiffs, who testified 
that he drove the three lots of cattle to Liverpool, for Cadwal- 
lader, with the instruction to deliver to Boynton ; that the wit- 
ness met the defendant at one time, when he drove down the 
cattle got of John Danley, and inquired of him ixttvhose expense 
an extra hand ivas to be kept ; to which the defendant replied, 
" at mine — I foot all the bills — Cadwallader is at work for me." 
At another time he asked the defendant if he was to have the 
plaintiffs' cattle, to which he replied " that he had written to 
Cadwallader to buy them for him if they were nice." In a few 
days after, the witness drove down the plaintiffs' cattle. The 
defendaatwas in a fret, and refused to receive them, and it was 
arranged that they should be put in a field over night at the risk 
of the witness, and in the morning- the defendant received them. 

DECEMBER TERM, 1855. 225 

Cadwell v. Meek et el. 

The witness stated that he took a ATritten statemeut of the 
weight, signed, Cadwallader & Smith. The witness also request- 
ed defendant to send some monej, to which he replied that he 
had none to send — to tell Cadwallader to come down the next 
Saturday and spend Sunday with him — that he had a settlement 
to make with him, and he should have the money to take back. 

The witness testified, on cross-examination, that the only bills 
or expense spoken of by the defendant, was the expense of the 
extra hand, for driving, and that he did not say how or on what 
terms Cadwallader was at work for him. 

The plaintiffs thereupon rested. 

Henry Walker was then called, as a witness for the defendant, 
and testified that he had been engaged in Fulton county, in the 
cattle business ; that he had, for three years past, bought cattle 
of the farmers, and re-sold to the defendant; that many others 
had also been dealing with the defendant ; that the defendant 
had, for three years, been engaged at Liverpool, a town on the 
Illinois river, in Fulton county, in buying pork and beef and in 
packing the same, and that the business at that place, in the 
defendant's line, was done entirely by himself and those con- 
nected with him. 

Thereupon, the defendant offered to prove what the general 
custom of dealers was during that time, in the place where the 
defendant transacted his buisness, with regard to the manyxer oj 
buying and procuring beef cattle, and also what the general 
custom was in the county and country at large in the same bus- 
iness ; also what the universal custom of the defendant y^z.% in 
the biisiness, together with the fact that the witness was well 
acquainted with such customs. To this the plaintiff objected, 
and the court sustained the objection, to which the defendant 

It was also proposed to show the same facts by several other 
witnesses, but the court refused to allow the evidence to go to 
the jury, to which exception was taken. 

The defendant then called Underbill Boynton as a witness, 
who testified that he was, and had been for some time, an agent 
of the defendant, authorized to select beef cattle ; that the 
defendant himself was not a competent judge of the quality and 
price, but left that matter to the witness, who was skillful in 
that line ; that the witness had no authority whatever to appoint 
other persons agents for the defendant , and that the only agent 
defendant had last season, was the witness ; he also stated that 
he did not give any authority to Ezra Cadwallader to buy for 
the defendant, but that, in passing through Ellis ville, he left 
word with Anson Smith to tell Cadwallader he wanted 1,000 
head of cattle, and for him to buy on the same terms as he had 

ILL. KEP. — XVII. — 14 


Cadwell v . Meek et al. 

the years before ; that he was very anxious to have him buy, as 
they were in a hurry to make up the lot ; that on the next day 
as he returned from Moses T. Hand's, (with whom he had made 
a contract, meanwhile,) he stopped and told Smith to tell Cad- 
wallader that he could buy, if he wished, on the same figures 
that Hand had agreed to buy, and if he was short of money, 
that they would send him some up, or he should have it when he 
wanted it. 

The witness also stated that the cattle for which this suit was 
brought, were bought by the defendant- of Cadwallader & Smith, 
through the word he left with Anson Smith, and that they were 
not authorized to act in any other way than that in which Hand 
did — to buy of whom they pleased, and the defendant was to 
take them at ■oxi agreed price per 100 lbs., andtojoa?/ the expense 
of driving. 

The witness also stated that he was present, and heard the 
conversation between Cadwallader and defendant, at Liverpool, 
mentioned by Cadwallader in his testimony. The defendant 
made the sum due from Cadwallader & Smith on the " corn 
transaction," $4,300. Cadwallader said it footed up more than 
he expected, and it would ruin him to turn the ivhole of the cat- 
tle on the amount due defendant ; to this the defendant replied 
that it was tight times, but if his money came, as ''he expected, 
he would let him have money, as he had done before. 

This witness further states that Cadwallader did not dispute 
the amout due defendant, or claim that he had bought plain- 
tiff's cattle as an agent, but was willing to turn a part of the 
money on the corn matter. 

The witness stated, further, that when the plaintiffs' cattle 
were sent down, a bill was sent, directed to the witness, signed 
Cadwallader & Smith, giving the weight of the cattle, but not 
stating of whom they were procured. 

1st. The curcuit court erred in permitting improper evidence 
to go before the jury. 

2nd. The circuit court erred in admitting Ezra Cadwallader 
as a witness. 

3rd. The circuit court erred in refusing to admit the evidence 
offered by the defendant, &c. 

4th. The cirucit court erred in refusing to grant a new trial. 

GoUDY and Judd, for Plaintiff in Error. 

W. Kellogg, for Defendants in Error. 

ScATES, C. J. Ezra Cadwallader was a competent witness to 
prove his own agency for plaintiff, and the contract he made for 

DECEMBER TERM, 1855. 227 

Cadwell v. Meek et al. 

him with defendants. This is the general and uniform rule, 
and well supported by authority. 1 Stark. Ev, 133 ; Lowber v. 
Shaw. 5 Mason R. 242 ; McGunnagle v. Thornton, 10 Serg. 
and Raw. R. 252 ; Harvey and Claxton v. Sweasy, 4 Humph.R. 
450 ; Christy v. Smith, 23 Verm't R. 670. 

This general rule is subject to qualification. An exception to 
it will exclude agents, as other witnesses, for an immediate and 
direct interest in the result of the suit. 1 Stark. Ev. 103 to 120, 
where the various interests are presented ; and 23 Verm't R. 
670 ; 4 Humph. R. 450 ; Shiras t. Morris et al., 8 Cow. R. 60. 
Sage ?;. Sherman, &c., 25 Wend. R. 430,and Emerton -y. An- 
drews, 4 Mass. R. 653, are further examples of that primary 
liability which renders a witness or an agent incompetent. 

But this exception to the general rule is also subject to a mod- 
ification ; for, where a witness is equally liable to the one or the 
other party who may be condemned by the judgment, his supposed 
bias from interest is removed ; he stands indifferent, and becomes, 
under such circumstances, competent, and existing preferences, 
if any are apparent, will go to his credit. Birt et al.. Assignees 
of Glover, v. Kershaw, 2 East. R. 458 ; Ilderston v. Atkinson, 
7 Term R. 480, and note ofEvans v. Williams et a/. An hon- 
orary obligation will only go to the credit. Frink v. McClung, 4 
Gil. R. 576. 

The testimony of the agent was submitted to the jury, with 
full and proper instructions upon the whole e^se, including the 
agent's credit, and explanatory and rebutting proofs. We can 
not disturb the verdict, under such circumstances, believing, as 
we do, that the evidence fully sustains the verdict, whether viewed 
in the light of a previous authority or a subsequent ratification 
of the acts of the agent. We recognize, and fully sanction, the 
rule applicable to ratifications of the acts of agents, that, to 
make them binding, the principal must be fully and fairly informed 
of all the material facts and circumstances. Owings v. Hull, 9 
Pet. R. 628 ; Hastings -y. Bangor House Proprietors, 18 Maine 
R. 436; Sage f). Sherman,&c., 25 Wend. R. 430. (tf) 

There is no suppression of a material fact shown in this record. 
If Cadwallader is to be believed — and we have no reason to 
doubt, supported as he is by other witneses and circumstances — 
notwithstanding Boynton did not hear nor swear to all that the 
other says transpired — plaintiff was fully advised of the fact 
that Cadwallader had purchased the cattle as agent ; that the 
money was due and belonged to defendants, and not to him ; 
and he was not willing, and had no right, to take their money 
to pay his own debts. Boynton would be understood as convey- 
ing a different impression of what transpired between the plain- 
La] Mathews, etc, . vs. HamUton et. al., 23 m. P 471. 


Caldwell «. Meek et al 

tiff and witness ; but I think he is fully corroborated by the 
witness who drove down the cattle, who give plaintiff's own 
statments, that Cad\^allader was at^work for him, and that he 
had written to him to buy defendants' cattle if they were nice. 
He must, therefore, be responsible for his own reception and 
retention of these cattle, with a full knowledge that they did not 
belong to CadwallaJer, and which he knew, for any thing in the 
record, in due time to have refused them, if not content to pur- 
chase of defendants. 

The answer he would make to this state of facts, is his own 
usual course of dealing in that neighborhood for three years, as 
a legal custom of trade. 

No such usage or custom, although it may be a general one, 
can be allowed to alter, vary or control the express terms of a 
contract. Dixon -y. Dedham, 14 111. R. 324. It may explain 
what is not agreed expressly, and how an implied contract may 
be understood and fulfilled. We do not think this particular 
individual usage, even if admissible, would explain or contradict 
the facts in this record. Such may have been plaintiff's usual 
course of dealing, while supplies of beef or cattle could be pro- 
cured through runners, as intermediate purchasers ; and yet, 
when one who had so acted refused to engage any further in 
that mode of trade, but assumed to act and purchase as an 
agent, and plaintiff receives cattle so purchased with a knowl- 
edge of that fact, he shall not be permitted to set up his previous 
course of dealing, *by Avhich he seeks, and would succeed, if 
allowed, in taking defendants' cattle to pay the debts of a 
former customer, who now assumes his own agency, as the 
means of procuring possession of their cattle. This custom 
might have been greater weight had it greater age and an univer- 
sality. I know that particular individual customs of companies 
and houses have been received to fix the rights and liabilities of 
customers and the powers of agents. Such was the case of 
Jones 0. Warner, 11 Conn. R. 40, which allowed the regular 
course of the trade of the house, to show that its clerk had no 
authority, to make a contract out of that usage. 

So in Loring et al. ^). Gurney, 5 Pick. R. 15, a like individual 
usage was allowed on its being proven that the customer was 
aware of it. 

Thompson 'o. Hamiltonet al., 12 Pick. R. 425, and Halsey v. 
Brown etal., 3 Day R. 349, are instances of a general custom 
in particular localities which Avere allowed to explain rights 
and liabilities arising on implied contracts, as that masters of 
coasters sailed the vessels on shares with the owners, as a mode 
af fixing the owners' compensation for the use of the vessel ; 

DECEMBER TERM, 1855. 229 

Cadwell v. Meek et al. 

and against, that freights for gold, silver, &c., were a perquisite of 
the master, and did not belong to the charter or owner of the 

In Reuner I'. The Bank of Columbia, 9 "Wheat. R. 581, (5 
Cond. R. 691,) a constant and uniform usage of the banks of 
Washington city, and Alexandria, in the District, to allow four, 
instead of thi'ee days of grace, on bills and notes was recognized 
and upheld. The coui't in sustaining this usage, advert to the 
fact that it had been the uniform usage from the establishment 
of the bank in 1793, and it was well known and understood by 
the defendant, Avhen he indorsed the note upon which he was 

Upon a like principle, a general usage or course of trade in 
particular articles of commerce have been sustained under like 
circumstances. Thus in Sewall -y. Gibbs et al., 1 Hall R. 602, 
on sale of indigo in ceroons, it was usual to deduct ten per cent, 
for tare, — but in case of fraudulent packing, the actual tare ; 
and so a deduction of seventeen per cent, was allowed upon 
proof of the custom and fraudulent packing. But in no case 
have I found a special, local or individual custom received to 
contradict a contract. There is no dispute but that these cattle 
were expressly and avowedly brought for plaintiff, and by one 
professing to act as agent only. To allow the plaintiff to set up 
his individual usage or course of dealing through one agent 
alone, would be to alloAv him to. take advantage of defendants. 

Had plaintiff refused to receive the cattle under Cadwalla- 
der's purchase for him as agent, and this suit had been brought 
on that contract to enforce it against him, he might and would 
occupy a different ground ; and upon showing that he had pur- 
sued such a unifom course of trade thi'ough one agent only 
and alone with intermediate purchasers, and defendant's knowl- 
edge of such course of dealing, might present grounds for 
rebutting an agencj and raising a suspicion of fraud or want 
of good faith and fairness on their part, in contracting so 
far out of that usage. Such a supposed state of facts might 
implicate the defendants for bad faith. But in the absence of 
such facts, such usage as is offered would apparently enable 
plaintiff to perpetrate a fraud upon defendants. 

Judgment affirmed. 


Murray et al. v. Whittaker et al. 

Samuel Murray et a!., Plaintiffs in Error, v. Feancis Whit- . 
TAKER et al., Defendants in Error. 


Wliere a case is Drought from rhe Circuit to the Supreme Court and remanded, 
the defemlant in the Circuit Court is presumed to know that the case is returned 
and docketed without notice of the fact. 

Either party may procure the record from the Supreme Court, and have the case 
placed onlhe docket of the Circuit Court for further proceedings ; and tlie oppo- 
site party will after tliat be governed by the action of the Circuit Court. 

While it might be a better practice for the Circuit Courts to cause notice of the 
filing of tiie record in such cases to be given, yet it is not in the power of the 
Supreme Court to make a rule in that regard. 

The opinion of the court embodies a statement of the case. 
The proceedings complained of were had before Woodson, Judge. 

M. McCoNNEL, for Plaintiffs in Error. 
D. A. Smith, for Defendants in Error. 

Skinner, J. The record of this case shows that the cause 
had been remanded on reversal of a former judgment, by this 
court to the Circuit Court of Morgan county, for trial de novo, 
and that at a term of said court prior to the October term, 1854, 
the cause was docketed and continued to the next term. At the 
next term, judgment by default for want of a plea, was rendered 
against defendants below, and the plaintiffs recovered judgment 
for their debt and damages. 

At the same term the defendants appeared, and on their motion 
this judgment was set aside. The defend ants then pleaded to 
the action, and moved for a continuance upon affidavit, setting 
forth defence to the action, and inability to make such defence 
on account of the absence of a material witness ; and alleging 
as excuse for not having obtained the attendance of such witness, 
that neither the defendants nor their attorney had had any notice 
or knowledge that the cause had been docketed for trial in the 
Circuit Court until that term. 

The court overruled the motion. The cause was tried and 
judgement rendered against the defendants below ; and they here 
assign the refusal to continue the cause for error. 

The defendants below had notice of the pendency of the cause 
in this com't, and were bound to know that the same was 
remanded for further proceedings in the Circuit Court. Either 
party could have procui'ed the record of this court, and, upon 
motion in the circuit court, have had the same filed, and the 

DECEMBER TERM, 1855.. 231 

Hitchcock, on motion, etc., v. Roneyt. 

cause docketed in that court for further proceedings ; and, in 
such case, the opposite party would be bound by the action of 
the Circuit Court in the cause without further notice. 

There is no statutory regulation requu'ing notice to the oppo- 
site party, upon the filing of the record of this court in the 
Circuit Court for further proceedings, and this court has no 
power to make rules of practice for the Circuit Courts. 

The better rule of practice for the Circuit Courts would seem, 
from analogy, to be to require the record, upon motion in open 
court, to be filed, and the cause to be docketed, and to stand 
continued for trial at the next term, unless the party filing the 
record shall prove notice in writing to the opposite party, served 
ten days before the term at which the record is so filed, of his 
intention to file such record and demand a trial, or further pro- 
ceedings at such term, (a) 

Judgment affirmed. 

AiiBON H. Hitchcock, on motion to quash execution in 
the case of The People n. BeistjajVIin E. Roney. 


The lein, created by the criminal code, upon the real and personal property o 
convicts, takes effect froni and during the entire day on whicli the arrest is made 
or the indictment found. 

A change of venue viM\ not effect any change in the operation of this lein ; which 
is not limited to the county in which the judgment is rendered. 

A stranger to the record and proceedings in such a case cannotinterfere, by mo- 
tion to quash a levy, sale and execution, had at the instance of the people. 

At the September term of Pike Circuit Court, 1855, Hitch- 
cock, the owner of certain real estate in Beardstown, Cass 
county, Illinois, levied upon and sold under an execution issued 
from the Pike Circuit Court, in the case of People vs. Roney, 
entered a motion and filed his reasons to set aside the levy and 
sale in said real estate, and quash the execution therein. 

The motion was continued for the purpose of notice to Lewis 
F. Saunders, the purchaser under said execution. 

At November special term of said court, 1855, Saunders, the 
purchaser, having been notified of said motion appeared by his 
attorney, and the People appeared by the State's attorney. The 
motion was heard, overruled, and judgment entered against said 
Hitchcock for costs. 

Bill of exceptions taken. Execution, dated 2nd May, 1 85, 
was issued fi-om Cii'cuit Court to sherijBf of Cass, in suit of Peo- 

\a\ Ogdenus. Bowen, 4 Scam. E. 301; Shaww. Dennis, 5 Gil. E. 421: Dodge vs. 
Deal,28m. 304; Chlckei-ingvs. FaUe, 291d. 294. , x^uu„«: f . 


Hitchcock, on motion, etc., v. Roney. 

pie vs. Benj. E. Roney, for the sum oi $290.75, costs rendered 
against said Roney at March term, 1855, of Pike Circuit Court. 

This execution was received by the sheriff of Cass county, 9th 
May, 1855, at 11 o'clock P. M., and on 25th day of May, 1855, 
was levied on lot 3, in block 3^, in Beardstown, Cass county, 
and on 23rd of June, 1855, said real estate Avas sold to Lewis F. 
Saunders, for |319.45. 

Also, a deed, Avith covenant of warranty and seizin, consider- 
ation $1,500 for said premises and two other lots, executed by 
Benjamin J. Roney to Murray McConnel, dated 18th day of 
May, 1853, and recorded in Cass county, on 1-lth May, 1853. 

Also, a deed, Avith covenant of warranty, executed by Murray 
McConnel to A. H. Hitchcock, consideration $850, for above 
premises, dated 21st May, 1855, and recorded in Cass county, 
on 22nd May, 1853. 

It Avas also admitted by said Hitchcock, on hearing of said 
motion, that Benj. E. Roney Avas indicted in Cass Circuit Court, 
on 13tli May, 1855, and that the Avenue therein was changed to 
Pike county, Avhere, at March term of Circuit Court of said 
county, 1855, said Roney was convicted and sentenced. 

Error assigned is overruling of said motion. 

Hitchcock, Avho represented himself as purchaser, by mesne 
conveyances from said Roney, of said lot three, offered the fol- 
lowing reasons by his motion, for quashing the fee bill issued at 
the instance of the People against Roney: 1. Because the fee 
bill and execution Avere illegal and void, as containing sundry 
illegal costs. 2. Because Pike court had no poAver to issue them 
to Cass county. 3. Because the levy, by sheriff of: Cass county, 
was illegal and void. 4. Because said judgment and levy, and 
sale Avere not liens. 5. Because no certiticate of leA'y was filed 
of record or recorded. The motion to quash was denied by 
Walicer, Judg-e of the Pike Circuit Court, at November term, 

M. McConnel and J. Grimshaav, for Hitchcock. 

M. Hay, Contra. 

ScATES, C. J. " The property, real and personal, of every 
person Avho shall be convicted of any of the offences punished 
by this chapter, shall be bound, and lien is hereby created on 
the property, both real and personal, of every such offender, 
from the time of his or her arrest, if he or she be arrested before 
indictment ; if not, then from the time oE finding the indictment, 
at least so far as will be sufficient to pay the fine and costs of 
prosecution." At the end of each term, the clerk shall issue 

DECEMBER TERM, 1855. 233 

Hitcbcock, on motion, etc. , v. Koney. 

executions for all fines and costs so adjudged, and note the day 
of the arrest or indictment, and the sheriff shall levy on all such 
real and personal property of defendant, which he " possessed 
as his or her own real or personal estate, on the day mentioned 
in such execution" and advertise and sell as in civil cases. Rev. 
Stat. 186, Sec. 192. 

De ?7iinimis non curat lex, would, upon general principles, 
include the whole day. And here the lien is expressly made to 
operate upon all the estate owned on that day. We must allow 
the arrest, or the finding of an indictment, to create and operate 
as a lien, on thatjday and the whole of it, or else we cannot give 
it any operation, without violating its plain language and obvious 
intent. I shall not discuss the power of the legislature to cre- 
ate liens for liabilities, nor the power or policy of giving prefer- 
ences to public interest. 

This is another instance of a semi-secret lien, as mentioned in 
McClure "W.Engelhardt (ante,p. 47,)whichhas not been required 
to be recorded for purposes of notice. 

I conceive the change of venue cannot effect any change in 
the operation of this lien. It can make no difference whether 
the judgment of fine, or for costs, is rendered in the county 
where the land lies, or a foreign county, as to this lien ; for it is 
not the judgment which is declared to be a lien, but the arrest ox 
indictment so operates, for the satisfaction of the judgment of 
fine or costs which may follow the conviction. This lien there- 
fore, does not arise under the general statute, making judgments 
liens from the last day of the term. 

Hitchcock is a stranger to the record and proceedings, and 
has no right to interpose a motion to quash the levy, sale and 
execution. As a purchaser of the same land, he has his reme- 
dies to investigate the question of title, and they are not 
impaired by this proceeding, to which he is not a party. 

In Price v. The Shelby Circuit Court, Hardin R. 254, the 
court held that they were not bound to hear a motion in a sum- 
mary way, at the instance of a stranger, although his interest 
might be affected by the execution sale. 

So in Glassell's Administrator i). Wilson's Administrator, 4 
Wash. C. C. R. 59, the court refused to interpose at the instance 
of third persons, who ^claimed the land levied on and sold ; and 
this rule was again applied in Wallop's Administrator v. Scar- 
burg et al., 5 Gratt. R. 1. 

More especially' will this summary remedy be denied, when it 
is inappropriate, and incapable of affording as complete relief 
as suit or bill. 

This reason constituted in part the ground of refusing a motion, 
in Day et al.-o. Graham, 1 Gil. R. 435, as the rights and equi- 


"Warner et al. v. Manski. 

ties of third persons, purchasers, could not be inquired into and 
protected by terms on setting aside the sale. No objection was 
taken to judgment creditors of the same debtor, as strangers, in 
that case, whose judgments were entitled to satis%ction out of 
the same property. Indeed such creditors were expressly 
relieved, and on motion, from a fraudulent sale, in Goff-y. Jones, 
6 Wend. R. 522. 

The court refused this summary remedy to the purchasers 
themselves, in Hewson -y. Deygert, 8 John. R. 333. But the court 
did interpose in Davis ti. Tiffany, 1 Hill R. 642, at the instance 
of a purchaser of the land, without notice of the judgment. 
There is no other fact noted to point us to, or explain the ground 
of this ruling. We have no doubt it was proper in the case, but 
is an unsafe precedent, without facts for our guidance. 

Judgment of the court, denying the motion, is approved. 

Judgment affirmed. 

Samuel Warner et al., Plaintiffs in Error, v. Gustavus 
Manski, Defendant in Error. 


Where a bill of exceptions does not show what the question propounded to a 
witness was, it is ditficult for this court to say that the Circuit Court erred 
in refusing to permit the witness to answer it. 

The decision of the Circuit Court to which the plaintiff in 
error took exception, was made by Woodson, Judge. 

D. A. Smith, for Plaintiffs in Error. 

M. McCoNNEL, for Defendant in Error. 

Skinner, J. The bill of execeptions in this case shows that 
the plaintiff below had examined a witness in chief ; and the 
defendant, with the avowed purpose of discrediting the witness 
on cross-examination, asked him a leading question in reference 
to a matter as to which the plaintiff had not examined him and 
that the court would not permit the question to be answered. 

The refusal of the court to allow the question to be answered 
is assigned for error. What the question was does not appear. 
It may have been impertinent, and the matter inquired about 
wholly irrelevant to the issue and in no manner important touch- 
ing the credibility of the witness. 

DECEMBER TERM, 1855. 235 

Mitchell V. Jacobs et al. 

We cannot say tlie court erred, without knowing what the 
question propounded was. Miller v. Houcke. et al. , 1 Scam. 
501 ; Russell -y. Martin, 2 Scam. 492 ; Hays ?). Smith, 3 Scam. 

Judgment affirmed. 

Matthew H Mitchell, Admr., &c., Plaintiff in Error, -o. 
Reuben Jacobs et aL., Defendants in Error. 


Taking an appeal, executing a bond,&c. , are in the nature of process to remove 
a case from an inferior to a superior court ; and if these should be irregular, 
and objection is not made in the first instance after appearance, the irreg- 
ularity is waived. 

An appearance in this case, except to object to the process or service, is a waiv- 
er of all irregularity in them. 

Where counsel for defendant found a lease among the papers in the cause not 
marked filed, which was an important piece of evidence for plaintiff, and 
annexed it to a dedimus and sent it out of the State, it was held that second- 
ary evidence of its contents should be admitted. 

The defendants in error presented a claim for allowance 
against the estate of Matthew Mitchell, deceased, in the county 
Court of Fulton county, which was objected to by the plaintiff 
in error, and upon a trial the County Court found against the 
claimants, and rendered judgment for costs. From this judg- 
ment the defendants in error attempted to take an appeal to the 
Circuit Court The bond purports to be executed by both of 
the defendants in error, but was only signed by Henry Emery, 
one of them, together with John P. Boice, as security. The 
bond y^z& appro'Qed by the clerk of the County Co^^r^ on the 
28th day of November, 1853, The transcript of the County Court 
record shows that the judgment was Rendered on the 7th day 
of November, 1853. 

The appeal bond and transcript were filed in the Circuit 
Court on the 28th day of November, 1853, and on the same day 
an appeal summons was issued against the plaintiff in error, 
returnable at the February term, 1854, which was returned not 
served. At that term the cause was continued. On the 14th 
day of April, 1854, an alias appeal summons was issued, which 
was returned served on the plaintiff in error. No summons was 
issued against Reuben Jacobs, the party who had not joined in 
the execution of the appeal bond. 

At the May term, 1854, the appearance of Reuben Jacobs was 
entered by his attorney, and thereupon the cause was continued 


Mitchell V. Jacobs et al. 

At the next term, (in September, 1854, ) on the first day, the 
plaintiff in error entered his motion to dismiss the appeal, and 
assigned as reasons — 

1st. That thei'e was no appeal pending in that court. 

2nd. The appeal bond was not given, taken and approved in 
the time and manner required by law. 

3rd. The appeal bond was insufficient. 

The other facts of the case are stated in the opinion of the 
court. The decisions complained of were made by Wead, 
Judge, at February term, 1855, of the Fulton Circuit Court. 

GouDY and Judd, for Plaintiff in Error. 

William Kellog, for Defendants in Error. 

Caton, J. This was an appeal taken from the county to the 
Circuit Court. At the first term after the appeal was taken, the 
parties appeared and the cause was continued by consent. At 
the next term, the appellee in the Circuit Court made a motion 
to dismiss the appeal, because the appeal bond was not filed 
within the time prescribed by the statute ; and also, because it 
was not approved by the proper officer. This motion Avas over- 
ruled, which is assigned for error. This identical question was 
decided by this court, in the case of Pearce ti. Swan, 1 Scam. 
266. In that case, the court said: " taking the appeal, execu- 
ting the bond, and delivering the papers to^ the Circuit Court, 
are the means provided by law for transferring the cause from 
the justice and constable to the Circuit Court. These measures 
are in the nature of process to remove the cause fi'om the infe- 
rior to the superior court. When process by which a court 
obtains jurisdiction of a cause is irregular, and no objection is 
made, the irregularity is waived. The irregularity is not like 
the case of a defective jurisdiction over the subject matter ; for 
the statute gives jurisdiction to the justice and constable in the 
first instance, and to the Circuit Court by appeal. " That was 
an appeal in a case of the trial of the right of property, levied 
upon by a constable on an execution issued by a justice where, 
as the statute then stood, the party must take an appeal and file 
his bond immediately upon the rendition of the judgment by the 
justice ; and in that case, this was not done till a subsequent 
day, and the party appeared to the appeal in the Circuit Court 
without objection, and this court held that the objecion was 
waived. The appeal proceedings being likened to process, odjec- 
tions to their regularity must be taken in the same time that 
objections to defective or void process or service are required 
to be taken. Now, the rule is well settled, that if a part 

DECEMBER TERM, 1855. 237 

Mitchell V. Jacobs et al. 

appears to a cause for any purpose whatever, except to object 
to the process or service, he waives all objection thereto, although 
the process may be void, or there may have been no service. 
Easton Ti. Altum, 1 Scam. 250. Here the appellee did appear 
at the appearance term, in the circuit court, and consented to 
a continuance of the cause. WTien he did that, he submitted 
himself and his cause to the jurisdiction of the court ; and it 
was too late afterwards for him to object, that himself or the 
cause was not properly brought there. Suppose it had been an 
original case in circuit court, and the original process had 
not been signed or sealed, or had not been served ; or suppose, 
even, no attempt had been made to issue such process, his appear- 
ance and consenting to a continuance would have been a waiver 
of process or service, and he could never afterwards be allowed 
to object that he was not properly brought before the court. He 
came voluntarily and submitted himself to its jurisdiction, and 
that put an end to all such objections. The circuit court 
decided properly in overruling the motion to dismiss ; for what 
reasons, it is immaterial to this court. 

The only remaining question is, as to the admissibility of the 
secondary evidence of the contents of the lease. The facts 
upon which that was admitted, were these : The original lease 
had been used upon the trial in the county court. Subse- 
quently, the counsel for Mitchell, the party against whom it was 
produced and used, found the lease, with some other papers not 
marked, filed in the court-room where the trial had taken place. 
He took the lease, and, instead of returning it to the opposite 
party, to whom it belonged, he attached it to a dedimus and 
sent it to California, the residence of the witness whose testi- 
mony he wished to take, to be read in this cause in the circuit 
court. Of this he subsequently informed the counsel of Jacobs, 
stating, at the same time, that he had no doubt it would be back 
in time for the trial. In this he was dissappointed ; for the commis- 
sion was not returned at time of the trial, and consequently the 
lease was not produced. Under these circumstances, we think 
the circuit court properly admitted secondary evidence of its 
contents. The party could not produce it. It was absent 
without his consent or fault. It was beyond the jurisdiction 
of the court, so that it could not be reached by legal pro- 
cess. But above all, it was placed thus beyond the power of 
the party or the court by the opposite party. He had taken the 
lease, knowing that it belonged to Jacobs, to whom, he also 
knew, it was indispensable on the trial, and without the consent 
of Jacobs, had sent it to California. To allow him, therefore, 
to say that Jacobs should apply for a continuance of the cause, 
or forego indispensable evidence on the trial, would be allowing 
Mitchell to take advantage of his own wrong. After placing 


Parsons -y. Evans. 

Jacobs in this position, the least he could do, to repair the wrong 
which he had done him by putting his primary evidence beyond 
his reach, was to consent that he should give secondary evidence 
of its contents ; and, under the circumstances, even very strict 
proof of that should not have been required. 

The court committed no error in admitting the evidence, and 
the judgment must be affirmed. 

Judgment affirmed. 

Lewis B. Parsons, Plaintiff in Error, ii. Gilbert Evans, 
Defendant in Error. 


Exceptions may be taken to the decision of aCircuitCourt, trying a case with- 
out the intervention of a jury, but they must be taken at the time ; and then 
the error can be assigned, not otherwise. 

This cause was tried by the circuit court of Madison county. 
Underwood, Judge, presiding, without the intervention of a jury 
and judgment was rendered for the defendant in error. 

Stuart and Edwards, for Plaintiff in Error. 

J. and D. Gillespie, for Defendant in Error. 

Skinner, J. This cause was tried b_y the circuit court by 
consent of parties, without the intervention of a jury, and judg- 
ment rendered against the defendant below. He appeals to this 
court, and assigns for error the rendition of this judgment. 
The bill of exceptions embodies the evidence, but fails to show 
that any exception was taken to the decision of the court, or 
that a motion was made for a new trial, overruled, and the 
decision of the court excepted to. 

Under the statute, exceptions may be taken to decisions of 
the circuit court, where the cause is tried without the interven- 
tion of a jury ; and the decisions of the court so excepted to, 
may be assigned for error in this court. R. S. 416, Sec. 22. 

In this case, it is the finding of the court, upon the evidence, 
that is complained of ; and to enable the party to assign error, 
the bill of exceptions should show that exception to such finding 
was taken at the time. Dickhut Ti. Durrell, 11 111. 72. 

The statute gives the right, in such case, to assign error, only 
where the decision assigned for error was excepted to, and we 
have no right to dispense with this requisition. (a) 

Judgment affirmed. 

[o] But see MetcaLf as . Fonts, 27 lU. R . 114 . 

DECEMBER TERM, 1855. 239 

Waggoner v. Cooleyet al. 

David J. Waggoner, Plaintiff in Error, v. Francis B. 
CooLEY et al. , Defendant in Error. 


The admissions of a person in possession, claiming property,are proper testimony 

as against Lis own title. An exception to this rule arises , under the statute, 

in the trial of right of property, which excludes the testimony of the defendant 

In execution. 
As between vendor and vendee,a fraudulent sale maybe good,butvoidas between 

each ofthem and creditors. 
A creditor, in failing circumstances, has not tlie right" to transfer his assets to 

an agent, witli power to sell, and prefer creditors . 
Cieditorswho,to secure a debt take title by purchase, from a fraiidulent vendee 

with knowledge of his title, only such title as their vendor had, and other 

creditors may assail the whole transaction for fraud, (a) 

This was an action of trover, commenced by the defendants 
in error, against the plaintiff in error, in the Fulton Circuit Court, 
to recover damages for the conversion of certain lots of corn, 
oats, wheat, &c. 

The defendants filed four pleas, to-wit: 

1st. That he was a deputy sheriff of Fulton county, and as 
such, he received six several writs of attachment, set out in the 
plea, against one Abraham Stevenson, issued from Fulton county, 
by virtue of which he levied upon and took the property de- 
scribed in the declaration ; and avers that the property belonged 
to the said Abraham Stevenson, the defendant in the attachments. 

2nd. The same allegations as the first plea, except that instead 
of setting forth six writs, it only alleges that one writ in favor 
of Samuel C. Davis was received by him, which writ is one of 
the six described in the first plea. 

3rd. That the property mentioned in the declaration was 
the property of Abraham Stevenson, and not the plaintiff's. 

4th. That the property was not the plaintiff's, but was the 
property of one Horatio J. Benton. 

The plaintiffs in error replied to the 1st, 2nd and 3rd pleas, 
denying that the property was Stevenson's and averred that it 
was the property of the plaintiffs, with conclusion to the country, 
to which similiter was added ; and to the 4th plea, that the 
property was not Benton's but was the plaintiff's, on which issue 
was joined. 

A jury was impanneled, which found the issues for the plain- 
tiffs below. Motion was made for a new trial, and overruled by 
the court, and judgment was rendered against the plaintiff in 
error, upon the verdict of the jurj. 

On the trial of the cause it was proven that the property in 
controversy, together with a stock of merchandize, was prio 

(a) Butler vs. Haughwont, 42 Ul. R. 18. 


Waggoner v. Cooley et al 

to the 9th day of May, 1854, the property of Abraham Steven- 
son, who was conducting a business in the town of Ipava, Fulton 
county, and that becoming embarrassed, he, on that day, trans- 
ferred and sold the whole of his property fraudulently to his 
clerk, Horatio J. Benton, for the purpose of avoiding the pay- 
ment of his debts, and at the same time he transferred, for the 
same purpose, all the indebtedness due him to his brother, John 
Stevenson. It was also proven that Benton was a party in the 
fraudulent object. It was proven that Abraham Stevenson then 
absconded with all his ready money, and was pursued by a cred- 
itor who arrested him in Ohio, and thereupon he settled with 
the pursuing creditor by paying his money on hand, and returned 
to Fulton county. It was further proven that Stevenson con- 
ferred no authority on Benton to pay his debt, or dispose of the 
property for his (Stevenson's) benefit, but that Benton was 
instructed not to pay the creditors ; and that no agency was 
created as to the property in controversy. 

It was then proven that one S, H. Gilbert, as the agent of the 
plaintiffs who resided in Chicago, came to Fulton county after 
the fraudulent transfer to Benton, while Stevenson was absent 
from the store, and Benton was in possession of the stock of 
goods and the property in controversy, having charge of a debt 
due the plaintifis of about $84u, and a writ of attachment issued 
from the court of Common Pleas for Cook county, in favor of 
the plaintiffs against the effects of Abraham Stevenson, to make 
their debt ; that ihe agent, Gilbert, placed the writ from Cook 
county in the hands of the sheriff of Fulton county, who, at the 
direction of the plaintiffs' agent, levied on the stock of goods 
as the property of Stevenson, and was about proceeding to levy 
on the property in controversy, when Gilbert and Benton made 
an arrangement. This arrangment was that the stock of goods 
should be released from the levy, and the property in contro- 
versy was to be sold and transferred by Benton to the plaintiffs, 
for which the debt of the plaintiffs against Abraham Stevenson 
was to be transferred to Benton. It was further proven that 
this arrangement was consummated in the presence of the 
sheriff of Fulton county, the levy released and the writ returned, 
the property in controversy sold, and in part delivered, and the 
indebtedness on Stevenson transferred to Benton. 

It was further proven that directly after the arrangement 
between Benton and plaintiff's agent, that the writs of attach- 
ment mentioned in the first and second pleas, came to the hands 
of the defendant, as deputy sheriff, and by virtue of the writs 
he levied on and took the property in controversy as the proper- 
ty of Abraham Stevenson. At that time a part of the produce 
had been removed from where Stevenson left it, and stored in 

DECEMBER TERM, 1855. 241 

Wagoner ". Cooley et al. 

the plaintiff's name, and the rest remained in the original places 
of deposit. 

The defendant then produced Joseph Dyckes as a witness 
and proved by him that he was sheriff of Fulton county , and as 
such had charge of the plaintiff's writ of attachment from 
Chicago, and was present and heard the negotiation by which 
Benton sold the property in question to the plaintiffs, and while 
Benton was in possession thereof, by which they claimed the 
title to the property. After making such proof, the defendant 
proposed the following question: What did Benton say with 
regard to the title to the property in controversy, while he was 
in possession of the same ? To which the plaintiffs objected 
and the court sustained the objection, to which the defendant 

The defendant then proved by Dyckes that Gilbert claimed 
that the transfer by Stevenson to Benton was a fraud and void; 
that the property still belonged to Stevenson; that Gilbert 
directed the witness to make the levy, then compromised with 
Benton and released the levy, when the court on motion of the 
plaintiffs, excluded the evidence from the jury, to which the 
defendant excepted. 

The several writs of attachment, with the returns thereon 
were offered in evidence, which was all the evidence. 

The plaintiffs asked the court to give the following instruc- 
tions to the jnry, to wit: 

The court is asked to instruct the jury — 

1st. That if they beleive, from the evidence, that Stevenson 
was indebted to the plaintiffs, and that their agents purchased 
the property in the declaration mentioned, of Benton, and that 
Benton was in possession thereof at the time of such purchase 
by purchase from Stevenson, and that said agent paid for said 
property in inbebtedness on Stevenson, and received said prop- 
erty in payment thereof, and received the possession of said 
property, and that defendant afterward took said property^ 
they should find for plaintiffs. 

2nd. That if the jury believe, from the evidence, that Ste- 
venson was indedted to the plainiffs, and the gDods and property 
in plaintiffs' declarations were received in payment of sucL 
indedtebness from Benton, he being in possession of said goods 
and received into their possession by their agent before 
said property was taken by defendant, the sale to the plaintiffs, 
was a legal sale, and that it is immaterial whe.her the sale by 
Stevenson to Benton was fraudulent or not, or whether the 
plaintiffs had ntoice of such fraudulent sale between said Benton 
and Stevenson. 

3rd That if they believe, from the evidence, that the sale- 

ILL. REP. — xvn. — 15. 


Waggoner v . Cooley et al. 

of the property specified in plaintiffs' declaration was sold to 
Benton by Stevenson, and tliat Benton gave his notes therefor, 
and that such sale was not a fraudulent one then the property 
passed to Benton, and a sale by him to plaintiffs would vest the 
property in said plaintiffs ; and that to constitute a fraudulent 
sale to Benton, they must believe that both Benton and Steven- 
son intended it to be a fraudulent sale. 

4th. That if Benton bo ught the property and gave his 
notes therefor in good faith, without any intention to defraud 
any one, then the sale is a good one, even if Stevenson did 
intend it to be fraudulent. 

5th. That if the jury believe, from the evidence, that Ste- 
venson sold the property to Benton in good faith and took his 
notes therefor, the sale is not fraudulent ; even if Benton intend- 
ed to defraud Stevenson or others, and that both vendor and 
vendee must participate in a fraudulent intent in order to make 
the sale fraudulent. 

6th. That in this case the plaintiffs are not to be affected by 
a fraudulent sale between Benton and Stevenson, even if there 
was one, unless they had some participation in said fraudulent 

7th. That where two creditors have demands against one 
debtor, it is competent for such debtor to prefer either creditor 
and pay him, even if the other creditor should lose his debt 
thereby ; and in such case the creditor who first obtained pay- 
ment of his debt, in property or otherwise, is entitled to retain 
the same if possession is delivered. 

8th. That if the jury believe from the evidence, that Ste- 
venson fraudulently sofd and conveyed the property described 
and delivered possession thereof to Benton, and gave him the 
entire control . of the property, still a sale by said Benton to a 
creditor, of Stevenson in payment of Stevenson's indebtedness 
to such creditor, will vest the right of the property in such 
creditor, and that his title thereto cannot be divested by a ub- 
sequent attaching creditor by reason of such fraudulent sale 

9th. That where one person gives the entire control of goods 
and chattels to another and authorizes him to dispose of them 
as he pleases, or fraudulently sells them to such person and 
delivers the possession to such fraudulent vendee, any sale made 
by such person to whom such goods are delivered, will be valid, 
and he will be treated as the agent of the first person, and such 
first person will be bound by his acts, and all persons claiming 
under him. 

And the defendant asked the court to give the following 
instructions to the jury: 

1st. If the jury believe, from the evidence, that the sale of 

DECEMBER TERM, 1855. 243 

Waggoner D. Cooley et al. 

the property, the title to which is in controversy, in this suit 
made by Abraham Stevenson to.H. J, ^Benton, was made for the 
purpose of hindering, delaying or defrauding the creditors of 
said Stevenson in the collection of their demands against Ste- 
venson, and that Benton participated in the said fraudulent 
intent of Stevenson in making his, said Benton's, purchase of the 
said property ; and if the plaintiffs only have shown a title to 
said property acquired through Benton — and if the jury believe 
from the evidence, that said plaintiffs purchased fi'om, Benton 
with a full knowledge of the said fraudulent contract between 
Stevenson and Benton, then the plaintiffs have shown no better 
title to said property as against the j-ights of Stevenson's othe 
creditors than Benton had thereto at the time when he sold th^ 
same to the plaintiffs. 6 

'J.nd. If the jury believe, from the evidence, that the con- 
tract between Stevenson and Benton was of the fraudulent 
character mentioned in the above instruction, then the pretended 
sale between Stevenson and Benton would be void as agaiuBt 
Stevenson's creditors, and such creditors could attach and hoi J 
said property in the hands of Benton for the satisfaction of their 
demands ; and in like manner said creditors could attach and 
hold said property in the hands of the plaintiffs if the plaintiffs 
only purchased said property of Benton, and before and at 
the time of their purchase had full knowledge of the void char- 
acter of said Benton's title on account of such fraud. 

3rd. If property is conveyed for the purpose of hindering, 
delaying or defrauding the creditors of the seller, and such 
property is attached by such creditors, such property is con- 
sidered as still the property of the seller in favor of his 
creditors' rights. 

4th. If the jury believe, from the evidence, that all the title 
to the wheat and barrels claimed by plaintiffs which they have 
shown was derived from Benton, and that Benton had no title 
to the wheat except what he obtained from Stevenson ; and if 
thay further believe that Stevenson never sold this wheat to 
Benton, then the jury must not assess any damages against the 
defendant for said wheat. 

And the court gave the 4th in number and refused to give 
the 1st, 2nd and 3rd, — to which decision of the court in refus- 
ing said instructions the defendant then and there excepted. 

This cause was heard before Wead, Judge, and a jury, at 
February term, 1855. Verdict and judgment for the plaintiff 
in the court below. 

GouDY and Judd, for Plaintiff in Error. 

Wm. Kellogg, for Defendants in Error. 


Waggoner v. Cooley et al. 

ScATES, C. J. With an exception exlcading by statute, a 
defendant in execution from testifying on the trial of the right 
of property levied on, by the general principles of law the 
admissions of a person in possession claming property, are ad- 
missible in evidence against his own title, and we are not able 
to discover any ground of objection upon which Benton's state- 
ments on this point should have been excluded, as the whole 
tenor of the evidence tended to show that defendants deduced 
title through him. Jackson ex dem, Titus et al.v. Myers, 11 
Wend. R. 533 ; Crary v. Sprague et al. 12 Wend. R. 41. 

The acts and declarations of Gilbert, his agency for defend- 
ants being proved, were admissible at least to show notice of 
the alleged fraudulent sale under which defendants were alleged 
to claim. 

The first, second, sixth, eight and ninth instructions given 
for defendants here are erronouos ; and the first, second and 
third instructions asked by plaintifi' here, were improperly 

The error seems to have arisen out of a mistaken view of the 
rights and powers of a fraudulent vendee. The sale may be and 
is good as between vendor and vendee, but void as between each 
of them and creditors, i^s to them, it is still the property of 
vendor, and so creditors may attach or levy upon it. 

This is the general rule, and under it the law will recognize, 
favor and secure the vigilant, as in cases of insolvency, where 
diligence may give priority by suit. 

But the case is not placed upon these familiar principles. 
We, on the contrary, understand the instructions, as assuming 
the ground, that although the sale is void for the purpose of 
transferring the title to the vendee, it is nevertheless a valid 
appointment of an agent with power to sell to and prefej the 
creditors of the vendor. No authority to sustain this position 
has been shown. The power of a failing, or insolvent debtor, 
to prefer and secure a creditor, has not been transferred to, or 
sanctioned in a fraudulent vendee, by any principle or decision 
known to us, when drawn in question or litigated between the 
creditors themselves. 

The case of Thomas v. Goodwin, trustee, 13 Mass. R. 140, 
referred to for this position, does not sustain it. The proceeding 
was a trustee process against the fraudulent vendee, with a view 
to charge him with the value of the property. To discharge 
himself from liability, he proved that he had paid, on the orders 
of the debtor, the full value over to creditors. An executor of 
his own wrong may discharge himself from further liability by 
payment of intestate's debts in good faith, nor is it apparent 
why a fraudulent vendee may not discharge himself from further 

DECEMBER TERM, 1855. 245 

"Waggoner v. Coolev et al. 

liability, after having paid away the proceeds or value of prop- 
erty, when the proceeding seeks to charge him with the value 
again. But when the proceeding is against the property itself, 
or the proceeds in the hands of the fraudulent vendee, I consider 
the aspect of the question as wholly changed. He has no rig-ht 
to dictate who shall, and who shall not be paid, or preferred. 
His position and possession of the property is one of self pro- 
tection merely, and not one of agency or preference. 

It may be here, that Benton has, by a delivery of the property 
over to a creditor of Stevenson, discharged himself from any 
further liability for it, or its value, and yet the receiver of it 
from him, and under his contracts and sales, has acquired no 
title to it, or preference over Stevenson's other creditors. Had 
defendants bought the property of Stevenson, they then might 
have raised the question of title by purchase and preference. 

Burnell et al. n. Robertson, 5 Gil. R. 282, is no authority for 
defendants, for there both sales were made by competent author- 
ity, the one by the owner, without delivery, the other by levy 
of attachment on the property, which created a valid lien, over- 
reaching the former sale without delivery. 

Had the defendants proceeded with their attachments, they 
had a lien, and may have perfected title by sale, and it may be 
a preference to the full value of the goods attached. But when 
they abandon that diligence, and consent to take title by purchase 
of the fraudulent vendee, with a full knowledge of his fraudu- 
lent title ; the fact that they are creditors of the fraudulent 
vendor cannot purge and purify the transaction of its fraudulent 
character towards other creditors, and make that valid which 
was before void. They waive their vantage ground, and take 
what title their vendor may have, as against other creditors, 
equally with themselves entitled to assail the transaction for 
fraud. See Jennings v. Gage et al., 13 111. R. 610 ; Saltus v. 
Everett, 20 Wend. R. 275 ; Swett et al. v. Brown, trustee, 5 
Pick. R. 178; Caldwell t;. Williams et al., 1 Carter R. 405; 2 
Kent Com. 324. 

Had the fraud been perpetrated upon the vendor, a bona fide 
purchaser or bailee, who receives the goods on a pre-existing 
debt, may hold them against the defrauded vendor, as is held in 
Root ^. French, 13 Wend. R. 570, andante, 11 Wend. R. 533. 
Powell et al. v. Jeffries etal.,4Scam. R. 387. (c) Every advan- 
tage that a suitor may obtain by his diligence, is sustainadle, 
even to the levy of an attachment between the execution anb 
filing a deed for record. Gushing i). Hurd, Jr., 4 Pick. R. 253. 
But a creditor has no right to take the goods without suit. 
Osborne r). Moss. 7 John. R. 164. Nor is his title improved 
by a purchase from one who had no right to sell, for the fact of 

(a) Butler vs. Haugh wont, 42 m. R. 18. 


CruU et ux. v. Keener and Dickersou «. Sprague. 

his being a creditor will not confer the right or power. And 
however free his own purchase may be from fraud, he must 
answer for the fraud which taints and avoids his vendor's pur- 
chase, when that fraud is known to him, although he was no 
party to that fraud. 

The instructions given and those refused seemed to proceed 
upon the ground that the fraudulent vendee had power to sell to 
a creditor of the vendor, and that he would acquire a valid title 
against the claims of other creditors, notwithstanding the first 
sale was void as to them all, for fraud, and that fraud known to 
the second purchaser. The principle is unsustained by author- 
ity and we are not able to give it our sanction. 

Judgment reversed and cause remanded for a new trial. 

Judgment reversed. 

George Crull and Wife, Plaintiffs in Error, v. Charles 

F. Keener, Executor, &c., Defendant in Error ; and 
Charles Dickerson e. Charles Sprague. 


The Supreme Court, except in certain specified cases, has only appellate juris- 

The Supreme Court will not take jurisdiction of a case certified, or an agreed 
case, unless there haa been a final judgment entered in the court below. (a) 

This was an agreed case, certified by the clerk of the Circuit 
Court of Scott county, submitting certain questions, under the 
statute of limitations, to this court for its consideration and 

The case was designed to come within the provisions of the 
seventeenth section of the twenty-ninth chapter of the Revised 
Statutes of 1845, entitled" Courts." 

The case of Dickerson v. Sprague was certified from the 
Cass Circuit Court, under the same circumstances. 

N. M. Knapp and D. A. Smith, for Plaintiffs in Error. 

M. McCoNNEL, for Defendant in Error. 

Caton, J. This court has only appellate jurisdiction, except 
in certain specified cases, of which this is not one. Sec. 5, Art. 
5, ■Const. In this case no decision was ever made in the Circuit 
Court ; but the counsel have stipulated or certified that certain 

(o) Moody V8. Peak, 13 HI. R. 343. 

DECEMBER TERM, 1855. 247 

CruUet ux. v. Keener, and Dickerson v. Sprague. 

[uestions of law arise in the case, "whicli aie still pending and 
mdetermined in that court ; and on that stipulation the ques- 
ions are brought here, and we are asked to decide them in the 
first instance, and for the circuit court. This is neither con- 
templated by the statute nor allowed by the constitution. The 
word appellate in the constitution is used in cntradistinction to 
original. It was intended to invest this court with supervisory 
power only, except where original jurisdiction is expresly gitsen. 
It contemplated some action, decision or determination of some 
officer or inferior tribunal, by which the rights of some party 
could be affected ; to re-examine and reverse which, he might be 
allowed to appeal to this court. The appellate power conferred 
is to correct errors committed by some inferior jurisdiction, and 
no error can be committed till a decision is made. There must 
be something to appeal from, before an appellate power can be 
exercised. Were we to undertake to decide questions thus pre- 
sented in the first instance, to this court, we should clearly 
assume to exercise original jurisdiction, which is exclusively 
vested in the inferior courts. This very question is still pending 
and undetermined in the circuit court ; and it is within its juris- 
diction, and perfectly competent, for that court to act upon and 
decide it, at the very moment it is being considered in this court. 
Neither the case nor the question is removed from that court by 
this attempt to bring it before this court. It is the policy of the 
fundamental law, that all questions of law should be subject to 
at leaat two solemn considerations and dscisions, before they 
should be considered as finally settled and determined ; and that 
in their final determination, this court should have the advice 
md assistance resulting from the consideration and decision of 
:he inferior tribunal. We cannot doubt as to the true meaning 
)f the constitution conferring upon this court its jurisdiction. 

Nor do we think the legislatrue misunderstood it, when they 
)assed the sixteenth and seventeenth sections of the twenty- 
ainth chapter R. S. , or that they ever contemplated that, under 
that statute, this court would ever assume to exercise any thing 
but appellate jurisdiction. The sixteenth section is this : " The 
parties in any suit or proceeding at law or in chancery, in any 
circuit court, may make an agreed case containing the points of 
law at issue between them, and file the same in the said court 
and the said agreed case may be certified to the Supreme court 
by the clerk of such circuit court, without certifying any fur- 
ther record in the case ; and upon such agreed case being so 
certified and filed in the Supreme court, the appellant or plain- 
tiffin error may assign errors, and the case shall then be pro- 
ceeded in in the same manner as it might have been, had a full 
record been certified to the said Supreme court. " Nothing can 


CruU et ux. v. Keener, and Dickerson v. Sprague. 

be more manifest than this was never designed, to allow a 
case to be taken to the supreme court till a final decision had 
been made in the circuit court, so that it could be taken up in 
the ordinary way by filing a complete record. It provides merely 
another and less expensive mode of accomplishing the same pur- 
pose. There must be an appellant or plaintiff in error in the 
case, who can assign errors, and to do that, there must be some- 
thing to assign errors upon — some error to complain of. The 
circuit court could commit no error, till it made a decision 
which could be erroneous. It would be no great compliment to 
legislative wisdom or learning, to impute to them the intention 
of requiring or authorizing a party to assign errors upon nothing. 
That would indeed be a new invention in legal proceedings. The 
proposition will not admit of grave discussion. 

The seventeenth section, upon which more special reliance 
was placed at the bar, by the counsel of both parties, in suport 
of this jurisdiction, is this : " Any judge of a circuit court 
may, if the parties iicigant assent thereto, certify any question 
or questions of law arising in any case tried before him, to the 
Supreme court, together with his decision thereon ; or, the par- 
ties in the suit may agree as to the questions or points of law 
arising in the <;ase, and the same may be certified by the counsel 
or attorneys of the respective parties, who shall sign their names 
thereto ; and upon such certificate being made, the same shall 
be filed in the Supreme Court ; and a copy of said certificate, 
certified by the clerk of said circuit court to the Supreme Court, 
and filed therein, and, upon filing the same, the like proceedings 
maj be had in the Supreme court as if a full and complete record 
had been transcribed and certified to said court." Now let me 
ask, in the first place, what proceedings would be had in this 
ccurt, should a party bring a case here in the usual mode, by a 
complete transcript of the record, from which it appeared that 
no decision had been made in the circuit court ? All who are 
acquainted with the practice of this court, know that it would 
at once be dismissed for want of jurisdiction ; and such the 
statute declares shall be the proceeding, when such a case is 
brought up by a certificate under this section. Under the first 
clause of the section when the certificate is made by the judge, 
it is expressly provided that his decision thereon shall be cer- 
tified, together with the questions of law presented in the case. 
Then, in that case at least, a decision must first be made before 
the case can come here for review. Now, it is plain, from the 
language of the law, that the subsequent provision of the same 
section was merely intended to provide another mode for bring- 
ing up the sa?ne case. It was not intended to authorize the 
bringing up a case in one mode, which could not be brought up 

DECEMBER TERM, 1855. 249 

Green et al. v. Oakes. 

in the other mode. After providing for bringing up the case by 
the certificate of the judge of the questions, and his decision 
thereon, the statute says : " Or, the parties in the suit may agree 
as to the questions or points of law arising in ihe case," evi- 
dently intending to authorize an alternative mode of proceeding 
in the same case, and not in another case, in -which the first mode 
could not be adopted. It is true that the legislature did not, in 
every case, expressly declare that no such certificate should be 
made until the case was finally disposed of in the Circuit Court ; 
but the reason undoubtedly was, that it did not occur to them that 
any body would think of bringing a case to this court for review 
till something was done in the Circuit Court which required 
reviewing ; that it was not supposed that any person would 
desire to come to this court to get justice done him, till he had 
failed to get it in the court, to which by law he was required first 
to resort. If no decision was to be made in the Circuit Court, 
why require him to go there at all ? It would seem to be a very 
useless formality to require the parties first to go into the Cir- 
cuit Court, not for the purposes of justice or adjudication 
there, but merely as a means of getting into- this court for the 
real purpose of the litagation, but with no power here to enter 
the requisite judgment; but for that purpose, the case would 
again have to be sent back to the Circuit Court ; for the case 
would not be here, but only the question certified, and the judg- 
ment could only be entered in the court where the cause would 
be pending. It would be better at once to allow the parties to 
come here with their case, as well as their question, and avoid 
all this expensive circumlocution. But the truth is, the consti- 
tution never authorized it, and the legislature never intended it, 
nor have they done it unintentionally. 

This question, submitted to the court for its opinion, must be 
dismissed for want of jurisdiction to determine it. 

Case dismissed. 

JoBDsr Green etal., Appellants, -y. Henry Oakes, Appellee. 


The remedy by Injunction to prevent the obstructing of a public highway, is effec- 
tive, and where the facts are easy of ascertainment and the riglitsresulting there 
from free from difficulty, equity will grant relief, at the suit of the public, or 
of the citizen having an immediate interest therein. 

Where a public road has been used for twenty years, the owner of the land over 
which it passes acquiescing therein, the law presumes a dedication, 
(a) Cunningham vs. Loomis, post 555. 


Green et ul. v. Oakes. 

On the 23rd day of November, 1853, Thomas Green and Ellery 
M. Merris, filed their bill in chancery with reference to a plat 
prefixed, alleging their ownership and occupancy of certain 
lands and that they were deeply interested in the uninterrupted 
and undisputed use of a public highway, indicated by said plat 
running east and west, " that had been used by the public for 
upwards of twenty years," and that Oakes had vowed his pur- 
pose to obstruct the same, by fences and gates, at two different 

Injunction was granted on the bill, 
* Oakes filed his answer, allwoing that the court had no juris- 
diction ; that complainants had adequate relief at law ; that 
bill is subject to demurrer and ought to be dismissed, because it 
did not allege that the highway had been legally laid out and 
established ; and that Oakes as owner of the land had been paid 
for the right of way. Denies that the road had been established 
20 3'ears, or that there was any prescriptive right to it, &c., &c. 

Replication filed to answer, when Oakes entered a motion to 
dissolve the injunction, which was continued on affidavits, that 
the road had been established, worked upon and used by the 
public for more than 20 years, before commencement of suit. 

Three witnesses for complainants testify, that for more than 
20 years they resided within a mile of the road in controversy ; 
that the road was opened about 1829, with the assent of the 
owners of the land over which it passed ; that for more than 20 
yeais before the institution of the suit, the road had been worked 
upon, and used by the public ; that it was essential to the public 
convenience, and that the obstruction of it would be injurious 
to the interests represented by appellants, and that they had 
understood that Oakes threatened to obstruct it. 

Bill dismissed October term, 1855, and appellants decreed to 
pay costs. 

Errors assigned : 

1st. That bill was dismissed. 

2nd. That the relief asked for in the bill ought to have been 
accorded by the court below. 

D. A. Smith and N. M. Knapp, for Appellants. , 

M. McCoNNEL and Grimshaw, for Appellee. 

Skinner, J. This was a bill in chancery to enjoin against 
obstructing a public road. 

The bill alleges that the road has been used 8 s a public high- 
way, with the knowledge and consent of the owners of the land 
over which it runs, without interruption, for more than twenty 
years, and has been worked and kept in repair for many years 

DECEMBER TERM, 1855. 251 

Green et al. i\ Oakes. 

as one of the common highways of the county of Morgan ; that 
complainants are owners of and occupy lands adjoining the road 
and ihac its free use is necessary to the enjoyment and use of 
their land, and that the respondent is about to fence up the road 
and deprive them of the use thereof. 

The answer denies that the road is a public highway, or has 
been used as such for twenty years. 

We are satisfied that the evidence establishes that the road 
has been used as a common public highway of the county, with 
the knowledge and acquiescense of the owners of the land over 
which it runs, for more than twenty years, and that it has been 
treated, by the authorities having jurisdiction of roads, as one 
of the public roads of the county. If equity will grant relief 
by injunction in favor of an individual interested against one 
about to shut up the road, and it is one of the public highways 
of the county, then the circuit court should have made the 
injunction perpetual, instead of dismissing the bill. 

Although courts of equity will not interpose by injunction to 
prevent an obstruction of an alleged easement or way, or the 
creation of a nuisance or purpresture, when the right is doubt- 
ful and there is remedy at law ; yet where the right is clear and 
appertains to the public, and an individual is directly and inju- 
riously affected by the obstruction of the easement, or the crea- 
tion of the nuisance, they will interfere on the application of 
such individual to prevent the threatened wron^ or invasion of 
the common right. 

In such case, equity can give complete remedy — prevent irre- 
parable mischief, and that continuous and vexatious litigation, 
that would arise out of resort to the remedies afforded at law. 

Obstructions to public highways are public nuisances, and 
private persons accustomed to use them, as well as the public, 
are interested in the prevention and removal of such obstruc- 

The remedy by injunction is perfect, and while it protects one 

from the injury, all are alike benefitted without the expense, 

delay and multiplicity of actions incident to redress at common 

law ; and where the facts are easy of ascertainment, and the 

ights resulting therefrom free from difficulty, equity will grant 

elief, either at the suit of the public or of the citizen, having 

an immediate interest therein. 2 Story's Eq. Com., Sees. 923, 

924, 925, and cases there cited ; Corning n. Lowerre, 6 John. 

Ch. 439 ; Hills v. Miller, 3 Paige's Ch. 254 ; ibid. 213 ; 4 

ibid. 510 ; 6 ibid. 83 ; 6 ibid. 554. (a) 

Where a public road runs across private property, and is used 
by the public as a common road without interruption for twehty 

(a) Chamblin vs. Morgan, IS m. K. 294, & notes. 


Sbadley et al. v. The People, 

years, the owner acquiescing in such uses, the law presumes a 
dedication o£ the ground upon which the road runs, to the use 
of the public for such purpose, {a) 

Whether this presumption is liable to be rebutted, or is con- 
clusive as a prescriptive right, is not necessary for the purposes 
of this case to decide. 3 Kent's Com. 442, 443, 444, 450, 451 ; 
Willoughby -i). Jenks, 20 Wendell 96 ; Conner -y.New Albany, 
1 Blackf, 43 ; Brown v. Manning, 6 Ohio 129 ; Gowen v. The 
Philadelphia Exchange Company, 5 Watts and Serg. 141 ; 
Hobbs V. Inhabitants of Lowell, 19 Pick 405. 

The decree is reversed and the cause remanded Avith direction 
to the circuit court to enter a decree making the injunction 
perpetual. (6) 

Reversed and remanded. 

Decree reversed. 

Mahlon Shadley ef aL, Plaintiffs in Error, t. The People, 
Defendant in Error. 


A scire facias, upon recognizance, should show, by proper recitals, that the re- 
cognizance had legally become matter of record. 

The scire facias, issued herein, simply recites the order of 
the circuit court, stating that Shadley did not answer, ordering 
that his recognizance before the justice be declared forfeited, 
and that a scire facias issue, and then calls upon the defendants 
named to answer. The defendants were served, but made de- 
fault, and judgment went against them for the amount of the 
recognizance. Judgment rendered at October term, 1854, of 
the Clark circuit court. 

Stuart and Edwards, for Plaintiffs in Error. 

J. McWiLLiAMS, District Attorney, for The People. 

ScATES, C. J. The scire facias serves the double office of 
process and declaration, in cases like this, and should be good 
and sufficient for each purpose. This is not sufficient for either, 
on default. 

The constitution requires all process to run in the name of 
the people of the State ; and this is not issued by such authority. 

In its office as a pleading, the scire facias should show, by a 

(a) Godfrey vs. Alton, 12 El. R. 30; Daniels vs. People, 21 111. R. US; Marcy vs; 
Taylor. 19 Id. 630; Proctor vs. Lewi.ston, Id. 153; Gentleman vs. Soule, 32 Id. 272 
Rees vs. Clucago, 38 Id. 323, post 363. 

( ) Ferris vs. Crow, 5 Gil. R. 101; Mo' Faden vs. Fortier,'20 111. R. 515; Leighton vs. 
Hall, 31 Id. 108. 

DECEMBER TERM, 1855. 253 

McConnell v. Street et al. 

proper recital of the recognizance, when it so appears upon its 
face, or by proper averments, that the recognizance was matter 
of record, and had legally become so ; for scire facias only [lies 
upon matter of record. ( a )This recognizance recited was entered 
into before a justice of the peece, but has never been returned, 
filed and made a matter of record. It is not to be implied from 
the order of forfeiture and award of the scire facias ; it 
must be shown or averred in it. Both are substantative defects. 

Judgment reversed. 

MuKRAY McCoNNEL, Plaintiff m Error, v. George Street 
et al., Defendant in Error. 


A party, who holds land under paper title, purporting to convey the same, and 

pays taxes for seven successive years, will be protected. 
That the title of a party originated in good faith, and that he holds under it will 

be presumed until the contrary is shown. 
Good faith, (uncier the actof 1S39, to quiet possession.) is understood to be the 

opposite of fraud, and of bad faith ; and its noij-existence must be established 

by proof. 

This cause was heard by Woodson, Judge, by consent, with- 
out the intervention of a jury, who decided that Street and the 
others had, and that McConnel had not, a good title to the lot 
of land in question, and rendered judgment accordingly. The 
opinion of the court sets out the facts in the case. 

M. McCoNNEL, pro se. 

D. A. Smith, for Defendants in Error. 

Skinner, J. Street, Harlin and Street, in 1853, brought 
ejectment against McConnel to recover fractional lot six in Jack- 

Plea not guilty /trial by the court, and judgment for plaintiffs. 

The plaintiffs proved that the land, upon which the lot was 
laid out, was patented to one Arnett ; a deed for the lot from 
Arnett to the county of Morgan, executed in 1825, and duly 
acknowledged and recorded on the day of its date ; and the 
plaintiffs proved title in ttiem, derived from the county of Mor- 
gan, by several mesne conveyances, and that McConnel was in 
possession at the time of the commencement of the suit. 

McConnel proved a deed of quit- claim of land covering het 

(a) Noble vs . People, 4 Gil. R. 434 and notes. 


McConnelw. Street et al. 

lot in controversy, from Arnett to him, executed in 1835, duly 
acknowledge and recorded on the day of its date, and convey- 
ing all " the right, title, claim and interest " of Arnett in the 
land described therein ; that he took possession of the lot in 
1836, and had occupied the same (without actual residence 
thereon) from that time until the commencement of the suit ; 
that the lot had not been sold for taxes since he took possession 
of the same ; that after the execution of the deed from Arnett 
to McConnel, Governor Duncan laid out an addition to the town 
of Jacksonville, which extended over a portion of the original 
plat of Jacksonville, and that lot one of this addition covered 
all of the lot in controversy except a few feet which were left 
out to widen an alley on the south side of the lot ; that he had 
paid all taxes assessed on the lot, either by the discription of 
" fractional lot six in Jacksonville," or of" lot one in Duncan's 
addition to Jacksonville," for the years 1845, 1846, 1847, 1848, 
1849, 1850, and 1851, the lot having been assessed sometimes 
by one and sometimes by the other of said descriptions. 

The only question for determination, is whether the plaintiffs' 
action is barred by the possession of McConnel under his paper 
tide, and payment of taxes for seven successive years, by opera- 
tion of the first section of the act ofj^l839, entitled " An act to 
quiet possession, and confirm titles to land." 

McConnel had actual possession of, and paid all taxes assessed 
on, the land for seven successive years, and, under paper title, 
purporting to convey to him the lot. 

The description used in assessing, and according to which he 
was compelled to pay the taxes, could not prejudice his rights, 
so that he paid all taxes legally assessed thereon for the seven 
years ; nor could the addition to the alley of a strip off the side 
of the lot, thereby dedicating its use to the public, affect his 
rights to the extent of his possession in fact. 

His possession w^as adverse, and the deed under which he held, 
in connection with the patent to Arnett, purported to vest in 
him the title to the lot, and in the absence of the prior deed 
from Arnett to the county of Morgan, his title was paramount. 
That his title originated in good Jailh, and that he held under 
his paper title, will be presumed until the contrary is proved. 
Fraud is not to be presumed, but must be proved. 

'■^ Good faith, ^^ within the meaning of this statute, I under- 
stand to be the opposite oi fraud and of had faith ; and its non- 
existence, as in all other cases where fraud is imputed, must be 
established by proof. («) 

That the paper title of McConnel is " color of title," within 
the meaning of this statute, there can be no question. 

We hold that the possession under the paper title, and payment 

(a) AVoortward vs. Bhinchavrl, 16 \\\. R. 433; Bowman vs. Wittig, 39Id.44S; 
Mc'Cagg vs. Heacock, 42 Id. 1.56, 34 and Id. 478 and post 502. 

DECEMBER TERM, 1855. 255 

The President and Trustees of Mt. Sterling v. Givens. 

of taxes for seven successive years, is a bar to the plaintiffs' 
action. Woodward 'W. Blanchard, 16 111. 424 ; Laflin ?), Her- 
rington, ibid. 301. (a) 

The President and Trustees of the Town of Mount Ster- 
ling, Plaintiffs in Error, v. James Gn^NS, Defendant in 


Where, upon a proceeding by town authorities to condemn lands for opening 
streets, tiiey describe said land in all their proceedings, as being the land of A., 
they cannot afterwards deny his right to be heard on the question of damages, 
upon the ground of his want of title. 

This is an appeal from tbe verdict of a jury impanneled to 
assess the damage for the extension of certain streets in the 
town of Mt. Sterling, over lands claimed by the defendant in 
error. Judge Walker having been of counsel for the defendant 
in error, the cause was sent to Hancock county, and was there 
tried at the October term, 1855, before Sibley, Judge, and a jury. 

The jury found for the plaintiff, James Givens, and assessed 
the damage he will sustain by reason of running the streets 
over his land, over land above the additional value said lands 
will derive from the construction of said streets, at $290. 

Of this verdict the authorities of ]\It. Sterling complain, and 
bring the cause to this court. 

J. W. Singleton, for Plaintiffs in Error. 

Browning and Bushnell, for Defendant in Error. 

ScATES, C. J, At the common law, possession was sufficient to 
sustain an action of ejectment for the recovery of title in fee ; Day 
et al. v. Alderson, 9 Wend. R. 223 ; and a bare parol acknowledg- 
ment of a tenant will be received as evidence to recover posses- 
sion from him ; Jackson ex dem. Dale et al. v. Denison, 4 Wend. 
R. 558. And this has been extended to parol declarations 
against one in possession, and those claiming under him, where 
no legal title is shown in him, and higher testimony appeared 
as to the matter of his title. Jackson ex dem. Swartwout 
et al. -y. Cole, Cow. R. 587. It was further held in this case 
that the defendant, having given evidence to show the lands 

(a) Dickinsou vs. Breeden, 30 lU. R. 325 dua post 501 


The President and Trustees of Mt. Sterling v. Givens. 

were forfeited to the State as the lands of a certain person, and 
with the view of defeating plaintiff's title by showing title out of 
the lessors of the plaintiff, and in another, derived through such 
forfeiture of that person's estate, the plaintiff might proceed to 
deduce title from that person, without further proof of title in 

And this court has sustained parol proof of ownership of land, 
under the statute against trespassing by cutting timber, which 
had been received as evidence of such ovvnr^rship, without objec- 
tion of defendant. Clayetal. v. B oyer, 5 Gil. R. 506. And 
yet strict proof of title may be required to show, and is contem- 
plated by this statute, as in ejectment at the common law . 
Wright y. Bennett, 3 Scam. R. 258 ; Mason v. Park, id. 532 ; 
Whiteside et al. v. Divers, 4 Scam. R. 336 ; Jarrot v. Vaughn, 
!2 Gil. R. 132. 

In County of Sangamon v. Brown et al., 13 111. R. 212, the 
court say the claimant holds the affirmative, and must prove 
title and damage. There is nothing in the case to show the 
claimant made this proof. That is the chief question here. 

The act of 1849 to incorporate towns and cities, (Acts 1849, 
p. 224,) authorizes incorporated towns to exercise the powers 
conferred by the-act of 1839, (Acts 1839, p. 12. art. 7) to 
incorporate the city of Springfield, amongst which is one to take 
private property for opening, widening or altering public streets, 
lanes, avenues and alleys. 

In exercising this power in the extension of North and Wash- 
ington streets, through the lands of Givens, the plaintiffs, in all 
their corporate orders, jury process, trial, or inquest of damages, 
have proceeded to locate these streets, and condemn land for a 
public easement, upon the land of defendant, James Givens, and 
not a particular locality. 

The order locating the extension of these streets, has no cer- 
tain, reliable or definite other description than north and west, 
over the lands of James Givens. If he has no lands, then that 
order is void for uncertianty, as no man can locate the exten- 
sion. If James Givens has no land in these directions, or if, 
as is not shown, there is no land in these directions known by 
that name or description, how far will you take these streets 
under such an order? Can the street commissioner in opening, 
or the jury in assessing damage, determine how far to go and 
where to stop ? Does Jthe order purpose to reach the outer 
boundaries of the town plat as recorded, or the outer boundaries 
of the corporation if beyond the plat, or a mile, or ten miles ? 
May not others, owning lands which would be crossed by these 
lines extended north and west, well resist any attempt to con- 

DECEMBER TERM, 1855. 257 

The President aud.Trustees of Mt. Sterling v. Givens. 

demn tlieir lands under this order, until it be shown that such 
land as is described as the point or boundary of extension, lies 
beyond, and therefore, the extension is across them also ? I 
make this criticism upon the order and the whole of the proceed- 
ings of the trustees in the condemnation, in answer to the view 
presented on the argument, that the order was no admission of 
title in James Givens, but was a mere discription of the land or 
line of extension, and James Givens must therefore prove title 
of ownership by deed or possession. This is a general rule 
true. But it may have its exceptions, as I have shown by de- 
cisions, where persons sustain relations that forbid them to call 
for proofs against their acts or admissions, or by waiver of 
such proof, and acquiescence in an inferior, secondary character 
of evidence. 

The circumstances and acts of the plaintiffs present such a 
case here. They have ordered an extension over the land of 
James Givens, and called a jury and assessed damages to him 
by that comdemnation, and they have submitted proofs to show 
no damage, on the trial of an appeal by him, without objection 
or denial of his ownership, except by a general instruction asked 
to be given to the jury to find for the trustees. So careful to 
conceal the true ground, being for want of written evidence of 
title, it is not mentioned in the instruction. Had it been openly' 
made and avowed, it may be, that on application, the court 
would have allowed the proofs to have been opened, and this 
objection removed by technical proof of title. It is too late 
here to raise that objection as technically included under the 
instruction asked. But beyond this we are of opinion that there 
is an intentional admission of ownership in Givens, doubtless 
known to be his from the private individual knowledge of the 
trustees, for the whole proceeding carries upon its face the man- 
ifest intention of extending these streets over his land, and his 
land alone, and for which purpose they call a jury and assess 
damages to him, and condemn his land. 

Had the order and proceedings described the land by num- 
bers, or any other designation of name or boundary, then indeed 
a very different question might arise as to ownership, and the 
legal proofs of it in James Givens, when he should come to ask 
damages for that extension over lands claimed by him. It is true 
the public may acquire no title, unless they properly condemn 
private property, and it may be, pay the true owner, or deposit 
it subject to his right. But it is equally true that the public 
authority may have the question of title investigated, if they 
please, and proceed against an individual as the owner, and con- 
demn it as his, and his right. When they do so, it is inadmis- 

ILL. REP. — XYII. — 16 


Whiteside et al. v. Tunstall. 

sible to deny his right to be heard on the question of damages , 
or to withhold them when assessed upon the ground of his want of 
title. This seems to us to be a clear case of this character. 

Judgment affirmed. 

A. J. Whiteside et al., Plaintiffs in Error, -». Joseph N. 
Tunstall, Defendant in Error. 


Where persons are regularly snmraoncd as garnishees, and make default, they 
admit au indebtedness to the del'eudant equal to the amount recovered against 

Whiteside and Eaton employed Tunstall to set up a steam 
engine, which if he did not successfully accomplish, he was not 
to have any other consideration than his board and horse keep- 
ing. During the progress of his work, one Parkey, who had a 
judgment against him, caused an execution to be issued, which 
was returned, two days afterwards, " No property found." 
Parkey caused garnishee process to issue against WTiiteside and 
Eaton ; they failing to answer to the garnishee process, were 
adjudged to pay, and did pay, the amount of the judgment 
against Tunstall. The circuit court decided that Whiteside 
and Eaton had no recourse against Tunstall for the money paid 
for him, because the 7?. /bt. against him did not run the seventy 
days before its return. Tunstall did not succeed in his under- 
taking to set up the steam engine, and Whiteside and Eaton 
were not his debtors. The judgment complained of was pro- 
nounced at November term, 1855, of the Greene Circuit Court. 

D. A. SmTH and J. M. Paljier, for Plaintiffs in Error. 

C. D. Hodges, for Defendant in Error. 

Caton, J. I am of opinion that the appellants were con- 
cluded by the judgment against them in the garnishee proceed- 
ing. They were regularly summoned to answer whether they 
did not owe the defendant twenty-one dollars. They failed to 
appear and answer at all and were defaulted, and judgment 
was entered against them for the amount. They thereby admit- 
ted an indebtedness to the defendant of at least that amount ; 
and that admission was as conclusive upon them as if they had 

DECEMBER TERM, 1855. 259 

"Weiner v, Heintz et al . 

appeared and denied the indebtebness ; and upon a trial a. jury 
had found the existence of the indebtedness. Had there been 
such a trial, and the indebtedness had been proved to the satis- 
faction of a jury, and a vei-dict and judgment had been accord- 
ingly rendered, would it be compatible with the intention of 
the statute, after paying that judgment, to allow them again to 
litigate the matter with the defendant ? If they paid his debt 
at his request, it was not as an advance and accommodation for 
him, but as a duty and an obligation to him. The law can 
imply no other request on his part for them to pay his debt. 
They can only recover against him for money paid to his use 
and at his request, — where the request either express or implied 
is, that they shall pay it as advance to him and for his accom- 
modation. The law can imply no such request here, but only that 
they should pay and satisfy the judgment against him out of 
money which they owed him. If we cannot imply that request 
we can certainly imply no other, and then we must hold that 
the money was paid without his request, in which event he is 
not liable to reimburse it, for they cannot become his debtors 
against or without his consent, express or implied. 
The judgment must be affirmed. 

Judgment affirmed. 

JoiiN E, Weiner, Appellant, ■«. Nicohlas Heintz and 
Valentine Miller, Appellees. 


If a court has jurisdiction of the subject matter, however erroneous a decree or 
judgment may be, it can only be avoided by a direct proceeding for that pur- 
pose, and cannot be attacked for error in another and independent proceeding. 

Although equity may grant relief by a strict foreclosure, the practice should 
not be encouraged. 

The right of redeinption continues until barred by lapse of time Jby strict fore- 
closure, or by judicial sale. But such right of redemption ceases after a sale 
under a decree to pay the debt. 

A suit at law to coerce payment of a balance remaining due, after applying the 
proceeds of the sale. does not open the sale and entitle the mortgagor to redeem, 
except within the time limited by the statute. 

If a decree directs the sale of land s"ubject to an incumbrance for notes not then 
due, the purchaser takes the land subject to the incumbrance, and cannot sue 
to recover the amount of the notes ; they are paid by operation of law. (a) 

If the mortgage acquires the fee in the land, the debt is merged in the land; and 
unless some contrary intention is manifest, the debt is extinct. 

The demurrer in this case was sustained and the bill dis- 
missed at September term, 1855, of the Madison Circuit Court. 

(a) Where mortS'XSee is such piu'chaser. Edgerton vs. Young, 43 111. R. 465. J 


Weiiier?). Heintz etal.l 

The facts of the case are stated in the opinion of the court. 
By consent the cause was brought for hearing to the second 
grand division. 

H. Billings and J. Gillespie, for Appellant. 

G. KoENREii, for Appellees. 

Skinner, J. This was a suit in equity to redeem mortgaged 

The court sustained a demurrer to the bill, and this decision 
is assigned for error. The bill alleges that Weiner, in 1840, 
executed a mortgage of the lands unto Nicholas Miller, to secure 
the payment of two promissory notes made by Weiner to Miller, 
each for ^620 — ;one payable in ten months after date, and the 
other in five years and ten months after date ; that Miller in 
1841, assigned the notes and mortgage to Heintz ; that Heintz, 
in 1843, on a bill to foreclose as to the note first due, obtained 
a decree of the Madison circuit court, for the amount of this 
note, and for sale of the mortgage lands to satisfy the same, 
but by which decree it was specially decreed that the sale should 
be made subject to the lien of the mortgage for the payment of 
the note not the due, and that the land should stand as security 
for the payment of this note ; that sale of the lands was made 
in pursuance of the decree, and that Heintz became the purcha- 
ser at $1043 ; that a deed was executed under the sale to Heintz 
specially reciting, that the lands were conveyed subject to the 
incumbrance of the morgage for the payment of this note last 
due, and according to the provisions, therefore, of the decree ; 
that, in 1846, Heintz conveyed the lands to Miller, and that 
Miller Avas fully aware of the rights of Weiner ; that Miller, in 
1852, died, having devised these lands to Valentine Miller, who 
still holds the same ; that the lands, at the time of the decree 
and sale, were worth greatly more than the amount of the mort- 
gage debt ; that Weiner had tendered, to Valentine Miller and 
to Heintz, the full amount of the mortgage debt and interest, 
and demanded a re- conveyance of the lands, and that they 
refused so to do : that Heintz, in 1854, sued We/ner in the Mad- 
ison circuit court, upon the note last due, mentioned in the 
mortgage and decree, and the suit is still pending. 

The bill charges that the decree of sale is void ; that Weiner 
is entitled to redeem : prays that Weiner be let in to redeem, 
and that Hentz be enjoined from proceeding at law to collect 
the note. Nothing is alleged, in the bill, against the jurisdiction 
of the circuit court of Madison County, of the persons and 
subject matter in the proceeding in which the decree of sale of 

DECEMBER TERM, 1855. 261 

Weiner «. Heiutz etal. 

the mortgaged lands was made ; and, if the court had juris- 
diction, however erroneous the decree may be, it can only be 
avoided by a direct proceeding for that purpose, and cannot be 
attacked for error, when brought in question in another and 
independent proceeding. 

This doctrine is too well settled to require the citation of 

The next question is, has Weiner, upon the case made by the 
bill, a right to redeem? The cases cited in argument, go to the 
rights of the mortgagor, in case of strict fcreclosure ; and they 
show great diversity of opinion, and clear absence of uniformity 
of decision. Some hold that, in case of such foreclosure, the 
land is taken for the mortgage debt, and that the debt is thereby 
satisfied ; others, that the land is thereby taken in satisfaction 
of the debt, to the extent only of the actual value of the land 
and that the mortgagee may proceed to collect the balance of his 
debt, without affecting the foreclosure ; and others, that the land 
\B X>2ikQ\\ prima facie in satisfaction of the debt, and that the 
mortgagee, if he preceeds to collect a balance of the debt, upon 
the ground that the land is not of sufficient value to pay the 
debt, thereby opens the foreclosure, and lets the mortgagor in 
to redeem. 4 Kent's Com. 181 to 185 and notes ; 2Hilliard on 
Mort. 138 to 150 ; Lansing n. Goelet, 9 Cowen 346, and cases 
there cited ; Hatch v. White, Gallison, 152. 

This conflict of decision illustrates the propriety and utility 
of decrees for sale of the mortgaged property to satisfy the debt; 
and such practice is not unknown in England, and is common 
and perhaps general in most of the United States ; and it is no 
longer questioned, whatever may have been the ancient practice 
of the chancery courts, that the power to decree a sale, instead 
of a strict foreclosure, is inherent in courts of equity. 

It is not denied that equity may still grant relief by strict 
foreclosure, but the practice should not be encouraged. By a 
sale of the mortgaged property, that is accomplished which the 
mortgagor and mortgagee, at the time of the execution of the 
mortgage, intended ; that the property should stand as security 
for the debt, and, if necessary, be resorted to as a fixed security 
out of wnich to obtain payment. At this day the mortagag is 
but an incident t© the debt, an hypothecation of the property as 
security for the debt, with the right in the mortgagor to redeem 
by paying the debt, and in the mortgagee to resort to the security 
to obtain satisfaction of the debt, in case of default of payment. 

Such is the common understanding among the people and the 
right of redemption must continue until barred by lapse of time, 
by strict foreclosure, or by judicial sale. But such right to 
redeem has no application where there has been a. sale under 


Weine «. Heintz et al. 

decree to pay the debt ; nor, in such case, does a suit at law, to 
coerce payment of a balance of the debt remaining after apply- 
ing the proceeds of the sale, open the sale and entitle the mort- 
gagor to redeem, thereby defeating the title of the purchaser. 
Lansing v. Goelet, 9 Cowan 359 ; Dunkley v. Van Buren, 3 
John. Ch. R. 330 ; Andrews v. Scotton, 2 Bland's Ch. R. Qm, 
By such sale the land is converted into money, and applied to 
the mortgage debt, and the purchaser takes the title. 

If the proceeds amount to more than the debt, the surplus 
goes to the mortgagor, and if they are insufficient to pay the 
debt, the balance unpaid remains, and the mortgagee may recover 
such balance from the mortgagor. And this is consistent with 
the nature of the contract, the rights and interests of the parties, 
and free from hardship, complication and difficulty in practice. 
Our statute, in case of sale of mortgaged lands under decree 
of a court of equity, gives to the mortgagor, his heirs, adminis- 
trators and grantees, a right to redeem for twelve months after 
sale and to judgment creditors the same right for three months 
thereafter. Rev. Stat. 305, Sec. 24. 

But, although Weiner is not entitled to redeem, he has a right 
in equity to relief against the collection of the note not due at 
the time of the rendition of the decree. 

The land was sold to pay the note then due, and subject to 
the incumbrance of the mortgage, to the extent of the amount 
of the note, not then due. Such are the provisions of the decree 
under which the sale was made, and of deed to the purchaser. 
The purchaser took the land subject to the incumbrance, 
became mortgagor to the extent of that note, and the land con- 
tinued sudject to the payment of the note, whoever should be the 
holder of the note or the owner of the fee, and equity would 
enforce payment out of the land. The purchaser is presumed 
to have bought the land at its value, less the amount of this note 
and equity Avill not permit him to hold the land and collect the 
note from Weiner. Besides, the note is paid by operation of 
law. (a) 

Heintz owned the mortgage debt, and got the fee of the land 
by his deed, under the decree, thereby becoming substantially 
mortgagor and mortgagee. 

The mortgage, and, with it the debt, therefore, merged in the 
fee, and could no longer exist. Where two titles or interests 
in land become united in the same person, in the same right, and 
at the same time as that of mortgagor and mortgagee, the lesser 
will merge in the greater estate and become extinct ; unless there 
be some interest or intention to the contrary, or the merger 
would work an injury to some one. Hilliard on Mort. 330 ; 4 
Kent's Com. 99 to 101 ; Campbell v. Carter, 14 1.11. 28G. 

{a) MerrittDS. Niles, 25 lU. R. 383; Smith vs. Smith, 32 Id. 198; Mines vs. Moore 
41 Id. 273. 

DECEMBER TERM, 1855. 268 

Jones V. Smith et al. 

Here no motion could exist to keep the debt alive ; for in 
equity the land would be made to pay the debt, and the owner 
of the debt was, at the same time, the owner of the land. 

The decree is reversed and the cause remanded, that the 
complainant may have relief by injunction and surrender of the 

Decree reversed and cause remanded. 

Decree reversed. 

Caleb Jones, Plaintiff in Error, v. Marshal Smith et al., 
Defendants in Error. 


Where a judgment debtor agrees to give notes and mortgages to secure his 
creditors, representing his title to the property to be mortgaged, as being 
clear and indisputable, and they receive the mortgages, relying upon his state- 
ment, but ascertaining subsequently that they have been deceived, they 
may refuse to acquiesce in such arrangement, and issue execution on their 
judgments, and he cannot restrain them. 

This is a suit in chancery, and the facts, as proven, are as 

Complainant, Jones, became indebted to James Gillham, and 
gave his note, and Marshal Smith signed his note, as security. 
He also became indebted to Abijah Felton, and gave his note, 
and said Smith signed with him as security. 

Jones and Smith were sued upon these notes, and two judg- 
ments were rendered, and executions were issued, and levied 
upon three tracts of land belonging to Jones. 

Jones paid those judgments, while the levy was in force and 
the executions were in the hands of the sheriff, in the following 
manner : 

Gillham and Felton took Jones' individual notes for the judg- 
ments, payable in one year, at legal interest; and to secure the 
payment of those notes, Gillham and Felton took two mortgages 
(one to each of them), upon the three tracts of land belonging 
to Jones, and he paid the cost of both suits ; and the sheriff 
was ordered by Gillham and Felton to return said executions 
without further proceedings, which was done. 

A few weeks after Gillham and Felton sued out alias execu- 
tions upon those same judgments, and caused them to be levied 
upon those three tracts of land belonging to Jones, and other 
lands belonging t9 Smith. 

The sheriff, by the order of Gillham and Felton, advertised 


Jones V. Smith et al. 

and sold the property, under those second executions, in about 
twenty days from the time they were issued. And defendant. 
Smith, attended the sale, a d purchased the three tracts of land 
belonging to Jones, for the full amount of said judgments and 
costs, and after the day of redemption expired, procured sheriff's 
deeds therefore Gillham and Felton thus received their money, 
by sale of the property within two months after the judgments 
were paid, and still retained Jones' note and mortgage given 

Smith, who purchased this land belonging to Jones, is the 
defendant in these executions, and was fully informed at the 
time he made the purchases that said judgments and cost had 
been paid as above stated. 

After Smith obtained deeds for this land, he filed this bill in 
chancery, alleging a mistake in issuing those second executions 
as to date, and prayed that this mistake be corrected. The bill 
also alleges that Jones and wife had, before the date of the 
judgments aforesaid, fraudulently conveyed this land to a daugh- 
ter ; and that the daughter married, and then joined with her 
husband in a reconveyance of the land to her father. But a 
mistake had occurred in the acknowledgment, as to the wife 
which rendered the deed, as to her, void and the bill prays that 
the title to this land be perfected in Smith, by setting aside the 
deed from Jones and wife to the daughter. 

The bill also charges that before said land was sold by the 
sheriff to Smith the same land had been sold for tax, to one 
Rucker, and by him to Armitage. And the bill alleges that 
said tax sale was void and conveyed to Annitage no title. 

Jones defended this suit in chancery, and filed an answer set- 
ting forth all these facts, admitting the tax sale to Armitage was 
.void, and was not an incumbrance upon the land. He also filed 
a cross bill, making Smith, Gillham and Felton parties, and 
prayed that he might be permitted to redeem the land from the 
mortgages given to Gillham and Felton, and to pay to them the 
notes and interest, and that the contract of which said notes 
and mortgages were the evidence, might be affirmed as against 
those parties. 

The bill also prays that the second executions issued on these 
judgments, and the sale and sheriff's deeds for said land to 
Smith, be set aside. That an account of the rents and profits 
of said land occupied by Smith, be taken, and the amount set 
off against the amount due upon said notes and mortgages, and 
that he, Jones, be permitted to pay the balance due, if any, and 
the land be restored to him. 

The circuit court, upon motion of Smith, dismissed the cross- 
bill without hearing, upon the ground that Jones had no right 

DECEMBER, TERM, 1855. 265 

Jones V. Smith et al. 

to file the same in this case, and proceeded to make a decree as 
prayed for by Smith in his orignal bill. 

Jones took the case to this court, and this decree was reversed 
and it was directed that the cross bill was properly filed, and 
that ii: Jones proved the facts therein alleged, he was entitled to 
the relief therein prayed. [See Jones u, Smith and others, 14 
Illinois 279.] 

The circuit court, upon the second hearing, again dismissed 
said cross bill, and affirmed its former decree. 

McCoNXEL, for Plaintifi" in Error. 

McClure, for Defendants in Error. 

Caton, J. The pleadings in this suit, so far as they. had then 
progressed, sufficiently appear in the report of the case when it 
was before us on a former occasion. Jones -y. Smith, 14 111. 
229. After the suit was remanded, an answer was filed to the 
cross bill denying that the notes and mortgages were received 
in satisfaction of the judgments, and this is the point principally 
controverted in the case. The circuit court found that they 
were not, and dismissed the cross bill and granted the relief 
prayed for in the original bill. After a careful examination of 
this evidence, we are very clearly of opinion that the circuit 
court has decided the case correctly. That the verbal aiTange- 
ment between the parties to the judgment was, that the notes 
and mortgage should be taken in satisfaction of the judgments, 
may not be disputed, but this was upon the undoubted under 
standing that the title to the mortgaged premises was clear and 
undisputed, afl"ording a good security to the judgment debtors, 
for the amount due them. Such was the substance of the 
arrangement between the parties. The notes and mortgages were 
executed in pursuance of this arrangement, and sent to the 
judgment creditors. Gillham received the one to him, and went 
and examined the title and found it defective. The fee was m 
fact in Mrs. Armitage, a daughter of Mr. Jones, and there was 
a tax title outstanding against the property mortgaged. The 
agent of Tilton, who had made the arrangement for him with 
Jones, was not at home when the mortgage was left at his house. 
Upon his return he took the mortgage to get it recorced, but 
before that was done he also discovered the defect in the title. 
Both judgment debtors notified Jones that they would not accept 
the notes and mortgages in satisfaction of their judgments. 
They immediately sued out executions on their judgments, which 
they caused to be levied on the premises in controversy, and the 
sheriff advertized the same tor sale. At the time appointed for 


Joues V. Smith et al. 

the sale, Jones appeared and asked a postponement, to give him 
an opportunity of clearing up the title, and said if he did not get 
up the tax title he would make no further opposition to the sale. 
The time -was given. He either could not or would not remove the 
incumbrance, and at the time then appointed, the premises were 
sold without objection by Jones. Indeed, it seems very clear to 
my mind, from the evidence in this record, that Jones did not 
act with frankness and sincerity towards Gillham and Felton in 
that transaction. While he assured them that he had a clear 
title, he knew that his son-in-law x\i'mitage, had a tax title, and 
the facts also established by Armitage's own testimony, that he 
had procured that tax title for the benefit of Jones himself. In- 
deed, Jones cannot be exonerated from the direct charge of fi'aud 
in the transaction. While he sought to get these judgments sat- 
isfied by the execution of the mortgages, he was contriving to 
defeat the title under the mortgages by means of the tax title 
which his son-in-law held for his benefit. Such a transaction 
can be sustained in no court of justice, to say nothing of the 
fi'audulent conveyance which he had previously made to his 
daughter, Mrs. Armitage. With no sort of propriety could we 
hold, under such circumstances, that the execution of the mort- 
gage operated as a satisfaction of the judgments. They were 
agreed to be accepted us a satisfaction, only upon the condition 
that the title was good. The condition failed, and hence there 
was no satisfaction. The arrangement, was made upon the faith 
of the representations of Jones, and witnout examination by the 
judgment creditors. So soon as they discovered the fraud, or 
the defect of title, they repudiated the arrangement, as they had 
a right to do, when they were immediately remitted to their 
original rights upon the judgments. Notwithstanding the unfair- 
ness of his conduct, they certainly acted with indulgence 
towards Jones, and evinced no disposition to get out of the agree- 
ment they had made with him. They postponed the sale at his 
request, to give him an opportunity to clear up the title, in which 
event they were still willing to receive the notes and mortgages 
in satisfaction of the judgments, although they were under no 
obligations to do so. After all this, he refused or neglected to 
remove the incumbrance, and thus comply with his agreement. 
He then stood in no position to claim that the judgments were 
satisfied, either in law or in sound morality. He cannot be 
allowed thus to take advantage of his own wrong. The allega- 
tions of the cross bill, that the judgments were satisfied by the 
execution of the notes and mortgages, were in no sense sus- 
tained, and it was properly dismissed. 

The mistake in the execution, which is sought by the original 
bill to be corrected, is clearly made out, as also that the deed to 

DECEMBER TERM, 1855. 267 

ManBiug et al. v. Warren et al. 

Mrs. Armitage, was not bona fide. Indeed, no controversy has 
been seriously made on these points, but the defence has rested 
upon the case made by the cross bill, which, as we have seen, 
is not sustained by the proof. The court properly granted the 
relief sought for by the original bill. 
The decree must be affirmed. 

Decree affirmed. 

Chaeles Manning et al.., Appellants, Xi. Heney A. Waeeen 
et al.., Appellees. 


Where courts of equity have concurrent jurisdiction witli courts of law, and 
the party proceeds in equity, if barred at law he will also be barred in equity. 

Although the statute of limitations may not in terms apply to courts of equity, 
yet by analogy equity will act upon the statute and will refuse relief where 
the bar is complete at law. 

A mortgage became forfeited in 1837 ; an undivided portion of the mortgaged 
lands, conveyed prior but recorded subsequent to the mortgage, which were 
soon after partitioned between the mortgagor and his vendee ; the p arties 
who subsequent to the partition acquired from the vendee ol the moitgagor 
and held the land in actual possession over seven years and paid taxes, were 
held to be protected under the statute of limitations against the application 
by bill of the mortgagee to foreclose his mortgage. The possession under pa- 
per title and payment of taxes for seven years being a bar to equity relief 
against the lands so held under the mortgagor. 

The facts of this case are stated in the opinion of the court. 

Levi Davis, for Appellants. 

J. M. Palmee, for Appellees. 

Skinnee, J. This was a bill in equity by Manning and Glover 
against Warren and others for foreclosure of a mortgage and 
sale of the mortgaged lands. The bill was filed in 1831, and 
alleges that in May, 1837, Caleb Stone, being the owner of the 
mortgaged lands, to secure Manning, as indorser, for the sole 
benefit and accommodation of Stone against loss on account of 
such indorsements, executed to Manning the mortgage deed ; 
that Manning, in 1837, for the sole benefit of Stone, indorsed a 
certain bill of exchange drawn by A. L. and C. Johnson in 
Missouri on A. L. Johnson of New York, in favor of Stone and 
Glover for $2108, payable four months after the 10th day of 
March, 1837 ; that the bill was protested for non-payment, and 


Manuiuar et al. v, Warren etal. 

that iMamiing, as such accommodation indorser, at the maturity 
of the bill paid the same, -vvhereby the mortgage became for- 
feited ; that in 1842 Manning assigned the mortgage to com- 
plainants, and that the amount so paid and the interest thereon 
remain due to complainants. 

The mortgage was duly acknowledged and recorded on the 
29th of May, 1837. Wan-en, Bridges and Snell, three of the 
defendants, answered separately, setting up in defence, among 
other things, that Stone, on the 2nd day of March, 1837, con- 
veyed to one Kirkland the undivided half of the following of 
the mortgaged lands : W. half N. W., E. half S. W., W. half 
S. E. 25, and E. half N. E. 26, T. 8 N., R. 13 West, of :third 
principal meridian ; that the conveyance was duly acknowledged 
and recorded on the 23rd day of July, 1838 ; that a partition 
of said lands was made between Stone and Kirkland, by which 
Kirkland took the E. half N. E. 26 and west half N. W. 25 of 
the four tracts so jointly owned, and Stone the other two tracts ; 
that these defendants derive title to the lands so partitioned to 
Kirkland by deeds through Kirkland ; that they and those under 
whom they hold have been in the actual possession of these 
lands under deeds of conveyance running back to Kirkland, for 
more than seven successive years, and have paid all taxes 
assessed thereon for the period of their possession. 

The possession of these defendants under deeds connecting 
them with Kirkland for seven successive years before commenc- 
raent of this suit, and payment of taxes by them for the same 
time, are admitted. 

The circuit coui't dismissed the bill as to these defendants, 
a.nd the only question necessary for determination is, did the 
possession and payment of taxes bar the complainants' suit as 
to them ? 

\Vlien courts of equity have concurrent jurisdiction with 
courts of law and the party proceeds in equity, if barred at 
law he will also be barred in equity, (a) 

And although the statute of limitations may not in terms 
apply to courts of equity, yet by analogy equity will act upon 
the statute and refuse relief where the bar is complete at law. 
1 Story's Eq. Com., Sees. 55, 529; Deloraine '«. Brown, 3 
Brown's Ch. R. 633 ; Smith n. Clay, ibid. 633; Dearman v. 
Wyche, 9 Simons 571 ; Kane -y. Bloodgood, 7 John. Ch. R. 
90 ; Staiford v. Bryan, 1 Paige's Ch. R. :^39 ; Humbert v. 
Trinity Church, 7 ibid. 195 ; Watkins w. Harwood, 2 Gill, and 
John. 307 ; Miller's Heirs i). Mclntyre, 6 Peters 61 ; Elmen- 
dorf V. Taylor, 10 Wheaton 152. 

It is therefore unnecessary to determine whether this case is 

(a) Han-is vs. MiUs. 28 Ul. R. 44; PoUock vs. Mason. 41 Id. 517. 

DECEMBER TERM 1855. 269 

Manning et al. v. "Warreu et al. 

within the express terms of limitation law of 1839, for it is 
clearly within the equity of its provisions. Real Estate Stat- 
utes, 426. 

The object of the bill is to subject the lands adversely held 
by these defendants to sale for the satisfaction of complainant's 
debt against Stone, and a surrender of possession to the pur- 
chaser is a part of the relief legitimately appertaining to such 
proceeding, and the court would cause the purchaser to be put 
in possession of the lands. 

The remedy is as complete by this suit, to oust, by process of 
law, these defendants, as ejectment at law, upon the mortgage, 
could be. By either ejectment or this bill, the remedy, as 
against these defendants, is complete and effectual to turn them 
out of their possession. , 

When, then, did the right of action, to obtain such posses- 
sion, accrue under the mortgage ? 

The mortgagee, or his assignees, after forfeiture of the mort- 
gage, could have maintained ejectment to obtain possession of 
these lands, and the action accrued when the adverse possession 
commenced. Adams on Ejectment 60 ; Smartle v. Williams, 
Salkeld 246. (a) 

The proof shows that actual possession was taken by these 
defendants, and those under whom they claim, as early as 184q, 
and has been continued up to the commencement of this suit. 
Upon the payment of the bill of exchange by Manning, in 1837, 
the mortgage became forfeited, and from that time ejectment 
could have been brought upon the mortgage, against any one in 
possession of the land, until the bar of the statute was complete. 

The right of action, then, accrued some eleven years before 
the commencement of this suit. That these defendants held 
adversely to the mortgage can admit of no doubt. They en- 
tered under a conveyance executed by the mortgagor prior to 
the execution of the mortgage, though the mortgage was first 
recorded, and are presumed to have entered and held in pursu- 
ance of, and according to the purport of, their paper title, and 
not in subservience to the subsequent conveyance of their grantor. 
We hold that the possession and payment of taxes for seven 
successive years, by Warren, Snell and Bridges under their paper 
title, is a bar to equity relief against the lands so held by them. 

Decree affirmed. 

(a) Carroll vs. Ballauce, 26 m. R. 9. 


Brady ®. Thompson. 

Mahala Brady, Adminstratrix, &c., Appellant, v. John 
B. Thompson, impleaded, &c., Appellee. 


In determiuingtbeweightoftestimonybetween two witnesses, the preponder- 
ance should be given to the one whose advantages for being correctly iul'oi'med 
as to the matters in controversy, are the best. 

On the 29th of August, 1853, intestate filed his bill slating 
that he, Thompson, and Dutch, were partners in a California en- 
terprise, for some five months in 1850 ; that Thompson and 
Dutch had adjusted their accounts, but that he had not adjusted 
his accounts with them ; that on a proper and fair adjustment of 
the partnership account, Thompson was justly indebted to intes- 
tate about one-third of $1050, which he refused to adjust, that 
as between intestate and Dutch, nothing was due either way. 
Bill waived answer on oath and prayed for interlocutory decree, 
that parties account — that Dutch be examined as a witness — and 
intestate offered to submit to decree if he were found indebted 
to either of the parties, and for general relief. 

Thompson filed answer admitting the allegations of the bill as 
to partnership, and stating that he, intestate and Dutch, in No- 
vember, 1850, had a full and final settlement of accounts in all 
matters relating to the partnership business, excepting, &c., as 
stated in the answer — states that "there was a full payment and 
delivery over to each of said partners of his share of the partner- 
ship, both as it respects capital and profits." The answer objects 
to the examination of Dutch as a witness. 

At November term, 1853, cause was referred to the master to 
take testimony in relation to settlement between partners, and 
report whether there has or has not been a dissolution of part- 
nership, and a settlenent of partnership transactions. Replica- 
tion filed to answer the same term. 

Dutch filed his answer 12th May, 1854, disclaiming any inter- 
est in the controversy, and denying any indebtment to either 
of the other parties. 

At ISovember term, 1854, Mahala Brady filed bill of revivor, 
suggesting death of intestate, 19th October, 1854, and that she 
was appointed his administratrix, and praying that cause be 
revived in her name, and for relief, as in original bill. At that 
term the cause was so revived, and the court decreed that Dutch 
(whose deposition had been taken,) was a competent witness, 
and that Thompson had not fully accounted to intestate as 
alleged in his answer, and that he (Thompson) account to the 
administratrix, and that account be stated by master. 

DECEMBER TERM, 1855. 271 

Brady v. Thompson. 

The master disallowed the account exibited, and claimed in 
behalf of appellant, and she by her solicitor excepted. 

This case was heard before Walker, Judge, at May term, 
1855, of the Cass Circuit Court. 

D. A. Smith, for Appellant. 

H. E. DujiMER and J. Grimshaw, for Appellee. 

Caton, J. The question in this case is purely one of fact. 
There is no dispute that Brady, Thompson and Dutch were in 
partnership for some time in California, and at the close of their 
business an accounting was had, when a dispute arose in refer- 
ence to Thompson having received about one thousand dollars of 
the partnership funds unaccounted for. As between Thompson 
and Dutch, the settlement was final, and the controversy now is 
whether it was final also as between Brady and Thompson, and 
if not, whether Thompson did receive the thousand dollars of 
partnership funds for which he did not account. We think both 
these propositions are clearly sustained by the proof. Dutch, 
one of the partners, testifies that at the close of the concern, it 
appeared that Thompson had received about one thousand dol- 
lars more than he could account for, whether by vouchers or entries 
in his own memorandum book, all of which were alloAved him. 
That in consequence of the peculiar relations existing between 
the witness and Thompson, he agreed to a division of the effects 
on hand, and waived all claim on Thompson by reason of the 
thousand dollars unaccounted for, but that it was expressly 
agreed as between Brady and Thompson, that Brady's claim 
against Thompson for his portion of the thousand dollars, should 
remain open, and should be settled after Thompson should return 
to the States, Thompson all the time insisting that he had ex- 
pended the money for the benefit of the concern, and that 
time he could make it so appear. All other matters relating to 
the partnership, were finally settled up between the parties at 
the time. The defendant now does not attempt to account for 
the thousand dollars, but insists in his defence, that the settle- 
ment in Stockton was final between all the parties, as well of 
the thosuand dollars as of all other matters. In support of this, 
Marston testifies that he heard Brady state immediately after the 
settlement between the parties in California, that " If he had 
not been going home he w^ould not have settled with Thompson 
in the way in which he did." Connovcr testifies that he was in 
and out of the roomo ccasionally during the settlement, but 
states nothing pertinent to the question. Jackson was also 
present during a part of the time, " when this subject of the 


Doan etal. v. Duncan. 

thousand dollars came ap, when Thompson told them that he 
could not see how he could spend that amount of money except 
for the concern. Dutch told him he would settle the whole 
matter, but Brady objected, but finally consented to do it, and 
take equal part with the balance. This was my understanding 
of the matter. When Brady refused at first to settle, Mr. Dutch 
insisted on his doing so. " This is the substance of all the evi- 
dence bearing on the point. There is nothing in the statement 
made by Brady to Marston inconsistent with the arrangement as 
testified to by Dutch. The fact that he was about to start home, 
may well have induced him to postpone his claim on Thompson 
for his share of the thousand dollars, till a future time, espe- 
cially as he could not then coerce it without postponing his return 
home. Nor, admitting Jackson's means of information to be as 
as good as those of Dutch, is there any thing in this testimony 
absolutely contradictory of the statement of Dutch. But if 
there were, Dutch's position and means of information as to the 
true charactei of the settlement, entitle his statements to vastly 
more weight than those of Jackson. Dutch understood the 
whole transaction in all its detail, and his account of the matter 
is rational and consistent, and carries to our minds a conviction 
of its truth. He certainly must have known what the under- 
standing of the parties was, and if he has stated it untruly, he 
has done so willfully and corruptly. Not so with Jackson. He 
could have had but a partial knowledge of the transaction, and 
from hearing incidental remarks or partial statements of the par- 
ties, was very liable to receive a false impression of the actual 
agreement between the parties. We think the complainant was 
entitled to a decree for one-third of the thousand dollars. 

The decree of the circuit court must be reversed, and the 
suit remanded, with instructions to the circuit court to enter 
a decree accordingly. 

Decree reversed. 

George P, Doan, d a/.., Appellants, o. Sidney S. Duncan, 



Power to act generally in a particular business, or a particular course of trade, 
will constitute a general agency ; if this is so indicated, no matter what the 
private instructions ol an agent may be. 

The extent of the authority of im agent should not be confounded with the 
nature of the agency ; but his action will bind his principal, in either case 
withui the general scope of the authority which the world has been permitted 
to suppose he possesses. 

DECEMBER TERM, 1855. 273 

Doan et al. v . Duncan. 

The authority of an agent may be shown by his acts about the business of Lii 
principal, while under direction, or by acquiescence in them when made 
known to the principal. 

The previous course of dealing, by or through an agent, is proper evidence for 
the jury, as tending to show the existence of an agency and its extent. 

This was an action of assumpsit brought by appellants against 
appellee, for goods sold, &c. Plea, general isue, trial by jury, 
verdict for appellee, and judgment for cost against appellants. 
Woodson, Judge, presided, at the trial in Morgan Circuit Court, 
at October term, 1855. 

The following are the instructions, as given in the court below; 

The plaintiffs asked the court for the following instruction : 

" If the jury believe, from the evidence, that the defendant 
held Charles Clarkson out to the world, as his clerk and agent 
in buying and selling goods for the defendant, and was known aa 
such agent by plaintiffs, and that the bill of goods sued for in 
this case was purchased by Clarkson, as such agent, on account 
of the defendant, then he is legally liable to pay the plaintiffs 
for the same, notwithstanding any private instructions of the 
defendant to Clarkson, or his appropriation of the goods to hia 
own use. " Which was modified by the court by inserting the 
words '' and was known as such agent by the plaintiffs, " to 
which modification, ^at the time, the plaintiffs, by their counsel 
excepted ; and the instruction as modified was given to the jury, 
to which the plaintiffs, by their counsel, at the time excepted. 

At the instanee o£ the defendant, the court gave the jury thj& 
three following instructions : 

1st. " That, although Clarkson may have been employed bj- 
Duncan, in the business house of Duncan in Waverly, and they 
should bo satisfied, from the evidence, that he was Duncan'^ 
general agent in the management of that business, yet if they 
believe, from the evidense, that Clarkson went to the business 
house of the plaintiffs in St. Louis, and offered to buy, and: did 
buy goods, on the credit and in the name of the defendant, under 
circumstances which would have put a prudent business man 
upon his inquiry as to Clarkson's authority, and no direct 
authority was produced to them from Dimca.n, and no such 
inquiry was made by plaintiffs, the defendant is not responsible 
for the goods so brought, unless it is proven by the plaintiffs that 
the goods were received and used by the defendent, or the trans- 
action was approved and sanctioned by him ; and they must find 
for the defendant. " 

'2nd. " That they cannot find a verdict against the defendant, 
unless they believe from the evidence, that the defendant gave 
power and authority to Charles Clarkson, to take up the goods 
named in the account herein filed; and to have the same charg^ed 

ILL. REP. — X VII. — 17 


Doan et al. v. Duncan. 

to him, said defendant, and to pledge the name and credit of the 
said defendant for goods, and that these goods were, in pursu- 
ance of that authority brought by said Clarkson for the said de- 
fendant, and that the name and credit of said defendant was thus 
in pursuance of said authority, pledged for the same ; or unless 
they shall further believe, from the evidence, that Duncan held 
out Clarkson to the world as his general agent to buy goods for 
him, and as such agent had been in the habit of buying goods 
for Duncan from plaintiffs. " 

3rd. " That although they may believe, from the evidence, 
that Duncan had employed Clarkson as his clerk, at his store in 
Waverly, and had sometimes employed him as his agent to pur- 
chase for him, said Duncan, goods at St. Louis or elsewhere, yet 
if they also believe from the evidence, that Duncan never had 
authorized said Clarkson to purchase goods of said plaintiffs, or 
held out or represented that said Clarkson was his agent to pur- 
chase goods for him, Duncan, and the jury also believe from the 
evidence, that Clarkson brought said goods, in the name of Dun- 
can, without Duncan's authority or knowledge, and that Duncan 
never did receive any part of said goods, then Duncan is not 
bound to pay for said goods, and the jury must find for the 
defandant, Duncan. " 

The jury returned a verdict for the"'defendant, and the plain- 
tiff, by their counsel, entered a motion to set aside the same 
and grant a new trial, because of wrong instructions given by 
the court to the jury, and because the verdict was against the 
law and evidence of the case ; which motion the court overruled. 

D. A. Smith, for Appellants. 

M. McGoNNEL, for Appellee. 

ScATES, C. J. The only question is whether the law of 
agency has been correctly stated in the instructions. We think 
it has not. Agencies are classed into general and special. But 
the powers and the instructions under which the agent acts may 
be more or less restricted in the one case or the other. Power 
to act generally in a particular business, or a particular course 
of trade, in a business however limited, would constitute a gen- 
eral agency, — if the agent is so held out to the world, however 
80 restricted his private iustuctions may be. Story on Agency, 
Sees. 126, 127,131, 132, 133. 

We should not confound the extent of the agent's authority, 
whether limited or unlimited, with the nature of the agency, 
whether general or special. (Sec. 133, notes 1 to p. 154.) 
Either acting within the general scope of the authority held out 

DECEMBER TERM, 1855. 275 

Doan et al. v, Duncan. 

to the world by the principal will bind him. And this may be 
shown by the usual acts of such agent in his principal's business, 
or by his, permitting and acquiescing in such acts when known 
to him as well as by express authority and directions. The 
policy and reason of the rule, is for the protection of the inno- 
cent, who deal upon the faith of such authority as the principal 
holds out or permits as being authorized and sanctioned by him, 
If any innocent party is to suffer it shall fall upon him who 
enables the supposed agent under his authoriy, to impose on 
others. And it is upon this principle that the principal may 
frequently be bound to third persons for acts oi: the agent in 
violation of his express private instructions although the ao-ent 
himself would be liable to his principal for the breach. 

Too much stress is laid upon the personal knoAvledge of plain- 
tiffs as to the character and fact of agency, in the modification 
of plantiffs' instruction and in the first instruction for defend* 
ant. They proceed upon the ground that defendant would not 
be liable for the acts of his general agent, unless the fact of the 
agency was personally known to plaintiffs, or they had demanded 
and the agent had produced satisfactory proof of his agency. 

This does not accord with my understanding of the laAV of 
agency. The principal may, when discovered, be held respon- 
sible, although concealed by the agent, and he alone trusted. 
I presume the instructions were prepared and modified, with ^. 
.view to deny the sufficiency of the acts in proof ; to establish 9, 
.general agency. But I presume the agency and defendant's 
liability must depend upon the facts, rather than plaintiffs^ 
knowledge of these facts. 

The second and third instructions for defendant are clearly 
wrong. The second would be understood as requiring a.Q 
express authority to make this particular purchase, or that 
plaintiffs must show that the agent had been in the habit of buy- 
ing of them for defendant. Much less proof than this instruc- 
tion contemplates may fix a liability on one for the acts of 
another, as his agent. Few agencies could be established under 
■the rule laid down in that instruction. 

The employment of persons in acts of this kind, buying and 
selling, frequently constitutes the proof of the agency itself. 
•The third instruction would destroy the force of such acts a^ 
evidence, and withdraw them from the jury. For although the 
agent was " sometime employed," as such, to buy " at St. Louis 
or elsewhere," yet if not held out to the world — and this is what 
is regarded and is evidence of a holding out to the world — or 
authorized to buy of plaintiffs, the jury are told not to regard 
the several purchases the agent was sometimes employed ot 
make. Thus the acts, instances, facts that are legitimate 


Cost et al. V. Rose et al 

evidence of a holding the party out to the world as a general 
agent are withdrawn as such, and no inference can be made 
from them. Stripped of these, and the remainder of the 
instruction requires direct authoritj to make this purchase. 
The previous course of dealing by or through the alleged agent, 
in St. Louis or elsewhere, was legitimate evidence tending to 
show an agency or not, and if one, its extent ; and all such facts 
should have been left to the jury to draw their own inferences. 
Judgment reversed and remanded for a new trial 

Judgment re/ccrsed. 

Samuel Cost et at., Plaintiffs in Error, t). William Rose 
et al. , Defendants in Error. 


In serving process by copy, the return of the officer must show a strict compli- 
ance with the statute, or the court will not obtain jurisdiction of the person. 

Wo default should be taken a<i;ainst infants, in a petition for partition ; a guar- 
dian ad litem should be appointed for them before|any steps are taken, wherein 
they are entitled to be heard. 

A default should not be taken upon publication, without a return of summons 
" not found." 

A decree of partition should notberendered against infants withont proof of the 
case made by the bill ; which proof should be perservcd in the record. 

Where land descends to the wife, it should, on partition, be set off to the husband 
and wife in right of the wife, or to her alone, not to them jointly and in lee. 

The opinion of the court sets out a sufficient statement of the 

GouDY and Judd, for Plaintiffs in Error. 

C. J. DiLWORTH, for Defendants in Error. 

SKI^^NER, J. This was a bill in chancery for partition. The 
bill alleges that Solomon Serin in his lifetime, Avas seized in fee 
of the N. E. 1-4 Sec. 8, T. 3 N-, R. 1 E., of the fourth princi- 
pal meridian ; that in 1851 he died intestate, and that the land 
gubject to the widow's dower therein, descended to his children 
and their decendants in seven equal portions, as tenants in com 
nion ; that five of these children and the decendants of such of 
them as are deceased, have convey ed their interest in the estate, 
being five-serenths thereof, unto Samuel Cost ; that the land is 
"held and owned in common, as follows : five-sevenths by Samuel 
Cost ; one-seventh by complainants, William Rose, and Eliza 

DECEMBER TERM, 1855. 277 

Cost et al. V. Rose et nl. 

Ann, his wife, in right of the said Eliza, who is a child of said 
Solomon ; and one seventh by Sarah, Betsy, John, Hugh and 
Phebe Serin, children of John Serin, who was a child of said 
Solomon, and that the children of said John are infants. 

The bill prays for partition according to the respective inter- 
ests set forth. Samuel Cost, the children of John Serin, and 
Elizabeth Serin, widow of Solomon Serin, are made parties 

Summons issued and was returned. The return was doubt- 
less intended as a return of service as to Cost and Elizabeth 
Serin, by leaving copies at their residences, but is Avholly insuffi- 
cient, under the statute, to show service. 

It does not show that the copies were left with a " white per- 
son, " a member" of the family," or that such person was in- 
formed " of ihe contents thereof." 

To obtain jurisdiction of the person, where this mode of ser- 
vice is adopted, the statute must be complied with. Rev. Stat. 
94, Sec 7. 

No return was made as to the other defendants, the heirs of 
John Serin. 

Proof of publication was made as to them, as non-residents, a 
default was taken as to all of the defendants, and an order of 
reference to the master to take testimony was made. After-, 
wards, the answer of the infant defendants by guardian ad litem 
was filed, but the record does not show that the person appear- 
ing as such guardian was appointed by the court. 

The court rendered a decree for partition, directing that five- 
Bevenths of the land be set off to Cost, one-seventh to the heirs of 
John Serin, and one-seventh to complainants. The commission' 
ers reported that they had made partition of the N. W. 1-4 Sec 
3, T. 3 N., R. 1 East, of the fourth principal meridian, and set 
off and assigned to William Rose, and Eliza xlnn Rose, his wife 
(the complainants), a certain portion thereof , to the heirs of John 
Serin (naming them) and Elizabeth Serin (the widow), a cer- 
tain portion, and to Samuel Cost the balance of the tract of land. 
This report was approved, and a final decree of investiture 
was made. Cost prosecutes this writ of error. The decree is 
erroneous for want of a sufficient return of sei-vice of summons. 
The defects have already been pointed out. 

By the report of the commissioners it appears that they made 
partition of a different tract of land from that described in the 
bill, the report is approved, and a decree of investiture is made 
based upon the report. For these reasons the decree must be 
reversed. As this cause is to be remanded, it is proper to 
remark that we have treated the case as a chancery proceeding 
for partition, although the bill seems to have been framed under 


Green et al. . Wardwell et al. 

the statute, because the bill is addressed to the judge of the cir- 
cuit court, " in chancery sitting." 

The complainants had their election to proceed in chancery, or 
under the statute, and that they elected to proceed in chancery 
seems clear from the face of the bill. Louvalle et al. x. Menard 
etal., 1 CiL 39. (a) 

Treating this proceeding as a bill in equity, it is apparent 
that much irregularity has intervened. 

The default should not have been entered against the heirs of 
John Serin upon publication, even were they adults, without a 
return of summons " not found" as to them. Jacobus tn Smith, 
14 111. 359.(6)They being infants no default should have been 
taken against them, Clay ■«. Norris, 4 Gil. 70. A guardian 
ad litem to the infant defendants should have been appointed 
and notified, before any steps were talcen wherein they were 
entitled to be heard. 

A portion of the land was set oif to the infants, heirs of John 
Serin, jointly and in Jee with the widow of Solomon Serin, who 
was only entitled to dower. The interest of Eliza Ann Rose 
was set ofi" and assigned to her and husband, jointly and 
in fee. 

The assignment should have been to the husband and wife in 
right of the wife, or to her alone. 

As no default or ]jroconfesso decree could be taken against 
the infants, a decree of partition should not have been rendered 
against them without proof of the case made by the bill, and 
this proof, in some manner, should appear in the record ; White 
V. Morrison, 11 111. 861 ; Wood ?). Owens, 12 111. 238. 

Decree reversed and cause remanded. 

Decree reversed. 

Amos GRExiN et al., Appellants, -y. John W. Wardwell 
et al., Appellees. 


An official bond of a justice of the peace is obligatory from the time is is left with 
the clerk for approval, if is not rejected by him, although he omits to approve. 

The sureties upon an official bond of a justice of the peace will be held liable so 
long as he performs the duties of station, without reference to the regularity 
ol his election, commission or eligibility. 

The board of supervisors, where township organization is adopted, legally suc- 
ceeds to the County Commissioners' Court, and may bring suit on the bond 
of a justice of the peace. 

The official bond of a justice of the peace de facto, is an obhgatory instrument. 
(«) S e act of 1857, p. 51, Hechins vs. Lyon, 35 lU. R. 150. 
(b) Goudy vs. Hall, 36 111. R. 316. 

DECEMBER TERM, 1855. 279 

Green et al. v. AV'ardwell et al. 

This cause was submitted to Skinner, Judge, oi the Adams 
Circuit Court, without the intervention of jury, at April term, 
1854, of said court. The court found that the bond mentioned 
in the declaration was the act and deed of the defendants, and 
that the breaches in the declaration were well assigned, and 
gave judgment for plaintiffs. Defendants below appea'ed. 

Wheat and Grover, for Appellants. 

Williams and Lawrence, for Appellees. 

Caton, J. This was an action of debt on an official bond 
against a justice of the peace and his sureties, assigning as a 
breach, his failure to pay over the money which the justice had col- 
lected in his official capacity. The suit is brought in the names 
of the supervisors, as the board of supervisors of Adams county, 
as successors in office of the county commissioners of Adams 
county, to whom and their successors, as the statute required, 
the bond was made payable. The questions presented arise 
upon demurrers to the pleas, of which it is only necessary to 
notice those relied upon in the argument ; which are, first, that 
Hobbs was not duly elected a justice of the peace ; second, 
that the bond sued on was not duly approved ; third, that he 
was not sworn as a justice of the peace ; fourth, that he was not 
duly commissioned ; fifth that the notes and account on which 
the money sued for was collected, were not left with him as a 
justice of the peace ; sixth, that, at the time the money was 
received, he was not a justice of the peace in manner and form 
as alleged in the declaration. To these several pleas a demurrer 
was sustained, which is now assigned for error. 

Upon these pleas two questions arise. First, whether any 
liability can arise upon the official bond of a justice of the peace 
before it is actually approved by the county clerk, as required by 
the statute ; and, second, whether the sureties of a justice of the 
peace de facto, are liable upon their bond ; or, in other words, 
whether the official bond of a justice of the peace de facto, is an 
obligatory instrument. We have no hesitation in answering 
both questions in the affirmative, and that the demurrer was 
properly sustained. When the bond was executed by the parties 
and delivered to the clerk for his approval, it became obligatory, 
unless it was actually disapproved by him. His mere non-action 
on the subject did not deprive the justice of his power to act, 
nor did it absolve his sureties from their undertaking that he 
should act with fidelity. Both he and they had done all thej 
could to comply with the law, so that he might legally discharge 
his official duties. The mere omission of the clerk to discharge 


Green et al. v. "Wardwell et al. 

his duty, in formally approving the bond, should not be held to 
prejudice the public, or those who resorted to, or were brought 
before him, to submit to his adjudications. If the clerk was not 
satisfied with the sureties it was his duty to disapprove of :jhe bond, 
Bo that the justice might find other and satisfactory sureties. 
If this was not done, upon principle, the bond became obligatory 
to secure the rights of the public and third persons. The clerk, 
indeed, might be prosecuted for a misdemeanor, for having neg- 
lected to perform an official duty, to formally pass upon the suffi- 
ciency of the bond. But the bond itself we have no doubt was 
binding upon the parties fi'om the moment it was delivered to 
the clerk. 

The other question is, if possible, attended with less difficulty. 
The public is not bound to inquire into all the technical questions 
which may affect the right of the officer to the office which he 
holds. Although he may have been elected by illegal votes, or 
may have been ineligible to the office ; although the great seal of 
State may not have been impressed upon his commission, or 
although even no commission at all may have been issuec^ to him, 
or although he may never have taken an official oath, or although 
he may have been elected to the legislature, which is an office 
incompatible with that of justice of the peace, still, so long as 
he continued to discharge the duties of a justice of the peace, 
and held himself out to the world as such, his official acts were 
binding, not only upon suitors, but also upon his sureties, and 
they continued bound upon their obligation. By signing his 
bond they acknowledged his rigi.t to the office, and to discharge 
its duties, and as such, recommended him to the public. (a )They 
at least, shall not be heard to say, that although they signed his 
bond, and thereby induced others to put money in his hands, 
relying on their bond for its safety, still he was jnot elected, was 
not commissioned, was not sworn ; that he was not, in fact, a 
justice. If he had ceased to be a justice, the plea should have 
shown how he had ceased, so that the court, seeing the facts, 
could determine, as a matter of law, whether or not he was still 
a justice. While he acted as such, and as such collected this 
money, he must be regarded as an officer de facfo, although, as 
the plea states, he had been elected to another office, which, in 
point of law, lendered him ineligible to the office of justice of 
the peace, {h) 

I may notice separately one of these pleas, which attempts to 
present a different question ; and that is the one in which it is 
said that the notes and accounts were not left with him as justice 
of the peace. It is of no moment in what capacity he received 
the evidence of the debts. The question is, in what capacity 

{a) Eddy vs. Co. Com. &C.15 01. R. 375. 

(6) Shaw V.S. Havekult, 21 Ul. K. 128; Otto vs. Jackson, 35 lU. R. 359; Allbee vs. 
People, 22 Id 531. 

DECEMBER TERM, 1855. 281 

VVeightman et al. v. Hatch. 

did he receive the money? The declaration charges him with 
receiving the money as a. justice of the peace and this is not 
denied by the plea. 

But admitting the legal liability of the defendants upon the 
bond, they propose to carry the demurrer back to the declara- 
tion, and insist that the suit is not properly brought in the name 
of the board of supervisors as successors to the County Commis- 
sioner's Court. We think this objection fully answered by this 
court in the case of The People -y. Thurber, 13 111. 554. I do 
not now feel called upon again to examine the legislation and 
legislative intent relating to the adoption of the township organi- 
zation, and the changing of the county goverments from one 
form to the other. The board of supervisors were the legal 
successors to 1 he County Commissioner's Court, and, as such, suc- 
ceeded to the legal title to official bond, (a) We think the suit 
was properly brought. There was no error in sustaining the 
demurrer to the pleas, and the judgment of the circuit court 
must be affirmed. 

Skinner, J., having tried this cause as judge of the Circuit 
Court, did not participate in the decision in this court. 

Judgment affirmed. 

John Weigtman, et al.^ Plaintiffs in Error, 'g. Reuben 
Hatch, Defendant in Error. 


A party has right to the same remedies to enforce the collection of a decree in 

chancery, for a specilic sura of money , that he has to enforce ajudgment at law ; 

and he may remove fraudulent conveyances out of way oi his execution, (i) 
A bill may be filed to remove fraudulent incumbrances or conveyances, as soon as 

judgment is obtained, without proceeding to obtain satisfaction out of other 


This was a bill in chancery filed in the Tazewell Circuit Court, 
15th March, 1852, by Reuben Hatch against John Preston and 
John Weightman, to set aside a deed made by Preston to Weight- 
man of certain lands situate in said county, which was alleged 
by complainant to be fraudulent and void, as against the cred- 
itors of Preston. 

The bill sets out, that at the October term, A. D. 1851, of 
the Pike Circuit Court, in a certain cause, on the chancery side 
of said court wherein the said Hatch was complainant, and the 
said John Preston and others were defendants, the said Hatch, 
by decree of said court, recovered of said Preston the sum of 

(a) L. of 1855, p. 159, County of Warren vs. Jeffreys, 18 m. K. 329. 
(a) Famsworth vs. Strasler, 12 Ul. .R 482. 


"Wcightman et al. t'. Hatch. 

three thousand and sixty-nine dollars and fifty cents, and which 
was, by the decree of said court, ordered to be paid by said 
Preston into the hands of the master in chancer}^ of said court, 
within thirty days from the date of the decree, together with 
legal interest and costs to be taxed by the clerk ; and, in default 
thereof, an execution was to issue therefor, as in cases at law ; 
and that the decree should be a lien on the real and personal 
estate of said Preston — an exemplified copy of which decree 
was made an exhibit in the cause. 

The bill further charges, that said Preston did not pay the 
sum in said decree ordered to be paid by him to the muster in 
chancery, nor any part thereof, nor at any other time ; that, 
thereupon, complainant caused an execution to be issued against 
the said Preston, for said sum, which was directed to the sherifi" 
of Pike county, to be executed ; and that the same was returned 
wholly unsatisfied, no property found by said sheriff — an exem- 
plified cony of which was also made an exhibit in the cause. 

The bill further charges, that the said Preston was wholly 
insolvent, and that he had no property of which said debt could 
be made, except as thereinafter specified ; and that, at the time 
said complainant commenced his suit in the Pike County Circuit, 
against said Preston and others, said Preston was the owner, in 
fee simple, of a large quantity of real estate lying mostly in 
Tazewell county ; that said Preston continued to hold said real 
estate in his own name, until about the 20th Sep., 1851, at 
which time, the bill charges, he made a colorable and fraudulent 
conveyance of the same to said Weightman, for the purpose of 
hindering, delaying and defeating complainant in the collection 
of the decree, which complainant was about to obtain against 
the said Preston, as aforesaid. The bill further states, that 
complainant's suit, in the Pike Circuit Court, was commenced on 
8th March, 1818, and that the same was not brought to a hearing 
on thejraerit until the March term, 1851. On the 16th of 
July, 1851, an interlocutory decree was filed in the cause, from 
which it was clearly to be ascertained that the said Preston 
would be found debtor to the complainant in a very large amount. 

The bill further charges, that the said defendant, foreseeing, 
from said interlocutory decree, that a final decree would be 
entered against him, in said cause, for a very large amount, for 
the purpose and intent of placing his property beyond the reach 
of an execution which might be awarded for the purpose of sat- 
isfying the same, on the 20th Sept., 1851, colorably and fraud- 
ulently conveyed, to John Weightman, a large amount of real 
estate, in the bill particularly described, all lying in Tazewell 
county, the consideration, expressed in the deed from Preston 
to Weightman, being only five hundred and twenty dollars. The 

DECEMBER TERM, 1855. 283 

Weightman et al. v. Hatch. 

bill further charges that said consideration was colorable only, 
and wholly inadequate compared with the value oi' the lands ; 
that said lands were worth from three to five thousand dollars 
at the time of conveyance. 

The bill then charges, in the alternative, either that said con- 
veyance was fraudulent, and intended to delay complaninant from 
obtaining satiof action of his decree, or that said conveyance was 
only intended by said Preston, to clothe said Weightman with 
the legal estate in said lands, to enable said Weightman to sell 
and dispose of the same with greater facility, as the agent or 
trustee of said Preston, and as such trustee or agent to account 
to Preston for the proceeds thereof, the equitable and beneficial 
interest still remaining in said Preston. The bill charges either 
one state of the case or the other to be true, in regard to said 
conveyance of said land ; and in either state of the case, the 
bill charges that said lands and the proceeds thereof should be 
applied in satisfaction of said decree. 

The bill charges, that since the conveyance of lands above 
mentioned from Preston to Weightman, said Weightman had 
conveyed certain portions of these lands to one Albert Parker, 
for the consideration of tAvo hundred and twenty- five dollars, 
to wit : east half north-west quarter, and west half north-west 
quarter, north-east quarter, Sec. 35, Town. 25 N., R. 2 W. 

The bill charges that complainant then caused an execution 
to issue upon said decree rendered in Pike county circuit court, 
directed to the sheriflF of Tazewell county, Illinois, and which, 
by the sherifi" of said county, has been levied upon the lands 
before decribed as conveyed by Preston to Weightman, except 
the lands conveyed by Weightman to said Parker ; that said 
execution bears date the 8th March, 1852, the levy and certifi- 
cate thereof filed with the recorder of said county, 13th March, 
1852; that the conveyance from Preston to Weigthman stands 
in the way of said execution, and is a hindrance to the satisfac- 
tion of complainant's decree, by reason of the doubt which 
would be thereby thrown over any proceedings against said 
lands, under said execution ; and prays the assistance of the 
court in the premises, and that Weightman and Preston may be 
made defendants to the bill, and then calls upon them to answer 
specifically the interrogations. 

The bill then prays that, upon proof of matters in the bill 
alleged, the lands conveyed by Preston to Weightman, except 
those conveyed to Parker, may be subjected to the satisfaction of 
complainant's debt, interest, costs, &c. 

Weightman filed his separate answer, in substance as follows : 
Denies all knowledge of the cause in Pike county circuit court, 
referred to in plaintiff's bill, and denies all knowledge of any 


Weightmau et al. v. Hatch 

decree rendered therein. That he does not know whether the 
paper filed with the bills, described as a certified copy of said 
decree, is a copy thereof or not ; that he knows nothing of the 
date of said decree, if any there was, nor if the said Preston 
had paid the master in chancery of Pike county circuit court 
the amount of said decree ; that he knows nothing of the issuing 
and execution, or of a levy, or if property was found or not ; that 
he knows nothing touching the solvency or insolvency of said 
Preston, nor does he know that complainant had an execution 
against said Preston — knows nothing of the residence of Preston 
at the time of filing the bill, but that he now resides in Pekin 
— knows not into whose hands the execution, if any, was placed, 
or what has become of it, whether it was presented to Preston, 
or whether sheriif found property belonging to Preston or not, 
but demands proof of all the above matters. Says that he knows 
nothing of Preston's circumstances, whether he is totally insol- 
vent, partially insolvent, or very wealthy ; that he knows noth- 
ing of Preston's property, and whether complainant is remediless 
or not ; that he does not know when complainant commenced 
his suit in the Pike county circuit court — believes that for 
many years Preston has been owner of real estate in Tazewell 
county — denies that Preston continued to hold the same in his 
own name until Sep., 1851, but is informed and believes that 
some months before that time, Preston sold all of said lands in 
the bill described, to John A. Jones, for the consideration of 
one dollar per acre, and recieved his pay therefor, all of which 
took place before respondent knew anything of said lands or 
defendant, Preston, and before he even heard of complainant or 
his Pike county suit. That, before the purchase by respondant 
Irom Preston, the sale from Preston to Jones was rescinded by 
mutual agreement ; that the charge in the bill, in which it is 
stated that on the 20th Sept., 1851, the said Preston colorably 
and fraudulently conveyed the premises in the bill described, is 
false. Whatever reason private or otherwise, induced Preston 
to make sale thereof to respondent, over and above the consid- 
eration at the time paid by respondent, and, agreed to be paid, 
respondent is ignorant. 

As to the charge that the consideration paid for said land, and 
to be paid, was only colorable and entirely inadequate, and the 
lands were worth from three to five thousand dollars, respondent 
can only answer, that he is ignorant as to what would be the 
value of the lands, if no shadow rested upon the title ; that, 
when respondent purchased the land, he did so at the suggestion 
of a disinterested person, knowing nothing of the land himself, 
or the title thei-eto. Respondent denies all knowledge of any 
fraud in the conveyance from Preston to him, or any intention 

DECEMBER TERM, 1855. 285 

Weightman et al. «. Hutch. 

to hinder and delay complainant from getting satisfaction of his 
decree. Denies all knowledge of any intention on the part of 
Preston to clothe respondent with the legal title in said land, to 
enable respondent to sell the same, as agent or trustee, the ben- 
eficial interest remaining in Preston. Adu its that he has con- 
veyed, to Albert Parker, the east half north-west quarter, and 
west half north-west quarter, north-east quarter of Sec. 35, in 
T. 25, Range 2 W., for the nominal sum of $225, and received, 
in part payment therefor a horse, at much more than its cash 
value. Knows nothing of an execution, in favor of complainant 
against Preston, issued from Pike county to the sheriff of Taze- 
well county, nor of its levy upon the lands, nor of any steps 
taken in relation thereto. Admits that the conveyance from 
Preston to respondent stands in the way of complainant's exe- 
cution and satisfaction of his decree, by reason of the cloud 
thrown thereby over any proceedings against said lands under 
said execution. Denies that there was any further or other 
understanding, between Preston and respondent, than that 
already stated. 

To the foregoing answer complainant filed his general repli- 

Preston having failed to answer, the bill was taken for confessed 
as to him. 

The decree in this case was ordered by Davis, Judge, at May 
term, 1853, of the Tazewell circuit court, setting aside the 
deed from Preston to Weightman, except as to land conveyed by 
Weightman to Parker. 

J. Roberts, for Plaintifi's in Error. 

W. Hays, for Defendant in Error. 

Caton, J. This is a creditor's bill filed by Hatch, against 
Weightman and Preston, to set aside an alleged fraudulent con- 
veyance, made by Preston to Weightman. Notwithstanding the 
very able and learned argument for the plaintiffs in error, after a 
full consideration of all the objections, we find we must affirm 
the decree excepting as to one hundred and sixty acres of the 
land which Weightman had sold to Duval, and twenty acres 
sold to Bogle, neither of whom were made defendants to the 
bill, and as against wham no decree should have been made. 

The bill alleges that the complainant had obtained a decree 
in a suit in chancery in the Pike circuit court, against Preston, 
for $3069.56 and costs, on which he had an award of execution ; 
that an execution had been issued to Pike county and returned 
nulla bona ; that an alias execution had been issued to Tazewell 


Weightman et al v. Hatch. 

county, and levied upon the land in question ; that Preston had 
previously conveyed the land to Weightman, by a colorable con- 
veyance and -without an adequate consideration, and for the 
purpose of defrauding his creditors, and prays that the convey- 
ance may be set aside, and the lands subjected to the payment 
of the decree referred to above. As to Preston, the bill was 
taken for confessed. Weightman answered on oath, denying the 
fi'aud, and showing that he had conveyed to other parties, por- 
rions of the land as above stated, in good faith. Those gran- 
tees have not been made defendants to this bill. We think the 
evidence is quite sufficient to overcome the defendants' answer, 
and to show that the conveyance to him was not made upon a 
bona fide sale. He distinctly stated to at least two witnesses 
on different occasions, that he held the lands in trust for Pres- 
ton, and from his statements it very clearly appears that that 
conveyance was made because of Preston's embarrassments, and 
to put the property beyond the reach of his creditors. Upon 
the hearing the complainant attempted to prove the alias execu- 
tion as alleged in the bill by parole proof of its contents, after 
having attempted to explain its abscence. This explanation was 
not sufficient, and were proof of that execution necessary to 
entitle the complainant to the relief sought, the decree would 
have to be reversed. But that averment Avas not necessary iu 
the bill and it was not necessary to prove it on the hearing. A 
party has a right to the same remedies to enforce the collection 
of a decree in chancery for a specific sum of money, which he 
has to enforce a judgment at law. Our statute gives him an 
execution upon such a decree, the same as upon a judgment at 
law, and he must have the same right to remove out of liis way 
fraudulent conveyances. For all the purposes of this bill, there- 
fore, that suit must be regarded the same as a judgment at laAV. 
Where a party seeks to remove a fraudulent conveyance or 
incumbrance out of the way of his execution, he may file his 
bill for that purpose so soon as he has obtained his judgment, 
and before he has made any effort to satisfy his judgment out of 
other property of the creditor. I cannot do better than to quote 
what was said on this subject by this court in the case of Miller 
et al V- Davidson, 3 Oilman 518, " Where a creditor seeks to 
satisfy his debt out of some equitable estate of the defendant, 
which is not liable to a levy and sale under an execution at law 
then he must exhaust his remedy at law, by obtaining judgment 
and getting an execution returned 7iulla bona, before he can 
come into a court of equity for the purpose of reaching the equita- 
ble estate of the defendant, and this is necessary to give the 
court jurisdiction, for otherwise it does not appear but that the 
party has a complete remedy at law. This is what may be 

DECEMBER TERM, 1855. 287 

WeiglitmaTi et al. v. Hatch. 

Strictly termed a creditor's bill. There is another sort of credi- 
tor's bill very nearly allied to this, yet where the plaintiff is not 
bound to go quite so far before he comes into this court, and 
that is where he seeks to remove a fiaudulent incumbrance out 
of the way oE his execution. There he may file his bill as soon 
as he obtains his judgment." Whether our statute, which sub- 
jects equitable interests in land to sale on execution, has done 
away with this distinction, it is unnecessary now to inquire. It 
is enough for this case that it came strictly within the rule that 
prevailed before that statute, which allowed the party to file his 
bill to remove a fraudulent conveyance, without showing that he 
could not obtain satisfaction out of other property of the defend- 
ant. As to him, the conveyance being void, the creditor has the 
right to place himself in the same position which he would have 
occupied had it never been made, and first seek satisfaction out 
of this land. The grantee's title being tainted by fraud, he has 
no right to say that all other means to satisfy the debt shall be 
exhausted, before he shall be disturbed in his title. In this case, 
then, the complainant was not bound to issue any execution, what- 
ever. He was as much entitled to the relief asked, w^ithout it 
as with it. It was an immaterial averment in the bill, and not 
necessary to be proved at the hearing. 

Again, it is objected that the complainant did not show a com- 
plete record of the suit in the Pike Circuit Court, This was 
not necessary ; the decree alone was sufficient, prima Jacie^ to 
entitle the complainant to relief, the balance of the case being 
made out. That would have been sufficient to have maintained 
an action of debt, upon the decree. The complainant was not 
bound to show that the decree had never been set aside, reversed 
or satisfied. That was for the other party to show in his defence, 
were it true. 

We are of opinion that the decree as amended in the circuit 
court must be affirmed so far as it annuLs and sets aside the 
conveyance of Preston to Weightman, except as to these tracts 
of land sold to Duval, amounting to one hundred and sixty acres, 
and the tract of twenty acres sold to Bogle, as to which it must 
be reversed. Also, that portion of the decree which directs the 
sheriff to proceed to sell under the execution from the Pike Cir- 
cuit Court, for the reason that we find the proof of that execu- 
tion to be insufficient. Each party must pay one-half of the 
costs of this writ of error. 


Battcrton et al -y. Yoakum. 

Andrew J. Batterton, et aL, Plaintiffs in Error, ^^ Wil- 
liam Yoakum, Defendant in Error. 


To recover in ejectment the claimant must have such an estate in the land a» 
entitles him to tlie present possession ; and where tliere is an outstanding 
life estate in the land claimed, or where a valid sale of it has been made, to 
pav the debts of the ancestor ; the heirs cannot maintain such action. 

A husband by his last will gives to his wife all his estate, except so much of a 
described piece ofland as it might be necessarj' to sell to pay all his just debts, 
to own as long as she should remain his widow ; tliis will invest lier with u 
life estate, if she continues luuuarried. 

Such a will is not to be understood as creating a charge of the debts of the de- 
ceased upon the life estate. 

This was an action of ejectment for several tracts of land, 
commenced in the county of Menard, by tlie heirs of David Bat- 
terton, deceased, against William Yoakum, and tried at the 
October term of the Meuord County Court, A. D. 1855. 

The plaintiifs and defendant waived a jury, and the case was 
tried by the court. 

The plaintiffs proved that thej were the heiri of said David 
Batterton. and that their ancestor entered one piece of land 
from the United States of x\.mcrica, and another piece of land, 
both claimed in the declaration, from the State of Illinois, and 
known as school lands. 

For the first tract of land, the plaintiff introduced in evidence 
the certificate of the register. For the second piece he intao- 
duced the following evidence, to wit: The certificate of the 
Secretrry of State, of the State of Illinois, first making affida- 
vit of loss or destruction of original deed from State. The 
plaintiff further proved the marriage of some of the plaintiffs, 
and the marriage of their ancestors. The plaintiff further 
proved, that said defendant was m possession of eighty or ninety 
acres of said land, claiming title thereto. 

The defendant then introduced in evidence the last will and 
testament of said David Batterton, deceased. 

The plaintiffs then read in evidence, an application of the 
widow, who was executrix of the will, to the Sangamon Circuit 
Court, for the sale of said land, or so much thereof, &c., together 
with the exhibits filed t:>erewith, showing the amount of the 
Indebtedness of said David Batterton. The plaintiffs then proved 
the sale of the lands claimed in the declaration, and offered in 
evidence, the report, &c., of the sale by the executor, with the 
will annexed, showing the sale by report, and how much the 
land sold for, &c., and that the whole 160 acres were sold in a 

DECE^'IBER TERM, 1855 289 

Batterton et al. d. Yoakum. 

lump, at $2.37 1-2 per acre, making $380, and that said defendaii 
became the purchaser, and that he was crier at the auction. 
The conrt gave judgment for defendant. 

W. Herndox, for Plaintiffs in Error. 

Stuart and Edwards, for Defendant in Error. 

Skeshs^er, J. This was an action of ejectment, brought by the 
heirs of David Batterton, to recover the premises in controversy. 
The plaintiffs proved title in fee in their ancestor, that thej 
were his legal heirs, and that Yoakum was in possession. 

The defendant proved the last will ef Batterton, and which 
contains the following clause : " I give and bequeath unto my 
beloved wife, Nancy Batterton, all my goods and chattels, 
together with all my stock, lands, household and kitchen furni- 
ture, only so much of the north end of the west half of the 
south west quarter of section seventeen, township seventeen 
north, of range six west, as may be necessary to pay all my just 
debts, with what other property she may think fit to sell, so far 
as to pay all the estate may be in debt ; the said Nancy Batter- 
ton, to all and everything over, so long as she, the said 
Nancy Batterton, remains my widow and no longer, then the 
estate to be equally divided among my heirs. 

The plaintiffs then proved an order of the circuit court of 
the proper county, in a proceeding of Nancy Batterton as 
administratrix of the estate of David Batterton, against the heirs 
of said Batterton, to sell the lands in controversy, to pay the 
debts against said Batterton's estate. The order directs the 
sale of the lands, or so much thereof as should be necessary to 
pay said debts. They also proved a sale and conveyance under 
the decree, and that the defendant who was the crier or auc- 
tioneer at the sale, became the purchaser. Trial by the court 
and judgment for defendant. 

From the view we take of the case, it is. necessary to examine 
but one question. The proof shows that Nancy Batterton is 
still living, aud remains the widow of David Batterton. If 
there is an outstanding life estate in Nancy Batterton in the 
lands, the plaintiff cannot recover in ejectment. 

To entitle them to recover in this action, they mus-t havesucK 
estate in the lands as entitled them to the present possession. 
If the proceedings under which the sale "had conveyance were- 
made to the defendant are valid, the title to the lands is in him. 
If these proceedings are valid, and ineffectual to vest the fee 
in the defendant, then the life estate of the widow, if such 

ILL. rep. — XVII. — 18 


Batterton et al. v. Yoakum. 

estate is created by the will, either passed to the defendant by 
operation of her deed as administratrix, or remains in her. 

In either event, then, the plaintiffs cannot now recover posses- 
sion of the lands, unless the deed of the widow, under the order 
of court, purporting to convey the fee, operated to forfeit her 
life estate and desolved the whole estate upon the heirs. 

At common law, a conveyance in fee by the tenant for life, 
forfeited the life estate, and those having the remainder or rever- 
sion became at once entitled to the entire estate. But this 
depended upon feudal principals that have no existence here, 
and hence a conveyance in fee by one having a less estate, not 
affecting those seized of ulterior interest in the lands is harm- 
less, and will operate simply to convey such interest in the 
lands as the grantor in fact has. 4 Kent's Com. 83, 84 ; Rog- 
ers V. Moore, 11 Conn. R. 553, 557. 

The whole question then depends upon the effect of the will. 
We think the evident intention of the testator was to vest in 
his widow a life estate in his lands, subject to be defeated 
during her life by subsequent marriage ; and this estate remains 
in her, unless it has passed to the defendant, and if it has so 
passed, the plaintiffs' action is equally defeated. 

The expressions used in the will in relation to the payment of 
debts, cannot be constructed into an intention to create a charge 
of the debts upon the life estate devised, and are, but a direc- 
tion as to what portion of his lands he desired to have disposed 
of to pay debts. 

These debts were a lien upon the lands, which, however 
devised, the law would appropriate to the payment of. 

It is unnecessary in this case to decide upon the validity of 
the proceedings under which the lands were sold, though there 
Avould seem to be little difficulty upon this point, where, as in 
this case, they are co//fl/f'ra//y brought in question. Nor, is it 
necessary to decide upon the effect as against the heirs, of the 
defendant being both auctioneer and purchaser. 

The plaintiff having no right of present possession, can have 
no remedy by ejectment ; but if the purchaser at the sale occu- 
pied ^ fidiLciary capacity, the sale may perhaps be avoided by 
them: and equity, perhaps, by reason of their ulterior interest 
jn the lands, and to avoid consequent of delay, will afford 
relief. Thorp et al. v. Mc Cullum, 1 Gil. 516. 

The plaintiffs not being entitled to possession of the lands, 
the judgment of the circuit court is not erroneous. 

Judgment affirmed. 

DECEMBER TERM, 1855. 291 

The Illinois Central Eailroad Company v. The County of McLean. 

The Illinois Central Railroad Company, Appellant, a. 
The County op McLean and George Parke, Sheriff, &c., 


Il is within the constitutional power of the legislature to exempt property from 
taxation, or to commute the general rate lor a lixed sum. (a) 

The j)rovisions, in the charter of the Illinois Central Eailroai.^ Company, ex- 
empting its property from taxation, upon thejpayment of a certain proportion 
of its earnings, are constitutional. 

This is a suit in chancery, from McLean county, to enjoin the 
collection of a tax, assessed by the county assessor of McLean 
county, upon the money and property of the Illinois Central 
Railroad Company. It comes to this court by appeal from a 
decree of dismissal, entered /?ro ybrma. The decree contains 
a stipulation, that the only question to be made in the Supreme 
Court is, whether the property and franchises, attempted to be 
taxed by the defendants, or any part of them is, in law, liable 
to county taxation. In case of reversal of the decree of the 
circuit court, the injunction is to be made perpetual. 

M. Brayman, J. F. Joy and A. Lincoln, for Appellant. 

S. T. Logan, and Stuart and Edwards, for Appellees. 

ScATEs, C. J. The question is one of the power of the legis- 
lature, under the second section of the i;iinth article of the pres- 
ent constitution, to exempt, or ii-ather to commute, by payment 
of a gross sum, to be ascertained by a fixed rule of computation, 
the property of the corporation from the payment of any portion 
of the taxes authorized to be levied for county purposes. It is 
contended that the power is restricted to a rule of '■^unifomity,^^ 
that will compel every <3wner to pay his ^wq^'' proportion''^ accord- 
ing to the "■ya/ue" of Jiis '■'■ property. ^^ This is doubtless the 
general rule intended to be laid down, and is well and clearly repeat- 
ed in other words, in the fffth section of the same article ; and we 
must consider all the provisions of the constitution together, in 
ascertaining the true intent and meaning of the convention in 
laying down the rule. 

The policy adopted in taxation has always been one of great 
delicacy in its exercise and discriminations, and the power one 
of vital interest to all governments, of whatever form ; and 
we have not been wanting, in the examination and discussion, in 

(n) state Bank vs. People, 4 Scam. R. 304; Himsacker vs. Wright, 30 m. E. 147j 
Neiistadt vs. lU.C. K. 31 Id. 485; The Board &c. vs. Mc'Donough Co. 42 lU. R. ^0. 


The Illinois Central Railroad Company v. The County of McLean, 

anxious and earnest searcli after the true interpretation of our 
own on this subject. And we feel authorized and required, as 
we beleive, from that consideration, to sustain the provisions of 
the twenty-second section of the act incorporating the plaintifts ; 
and that the payments provided for in the eighteenth section of 
their charter, have been constitutionally substituted under the 
second section of the constitution, in lieu of the general rule of 
uniformity and proportion fixed in its first clause. 

A superficial examination of the ninth article of the constitu- 
tion presents apparently obvious difiiculties, in sustaining the 
composition rule prescribed in the charter, as violative of both 
unifomity and proportion ; and this cause stood over, and a re- 
argument was ordered, that full discussion and deliberate exam- 
ination might remove these apparent difiiculties. 

If the rule of uniformity and proportion was to be taken, not 
only as a general but a universal and inflexible one, upon all 
taxable property, its true spirit would seem to ^be violated by 
any practical exercise of the power given in the last clause of 
the same section, which authorized various callings and occupa- 
tions, with fi'anchises and privileges, to be taxed, in addition 
and without respect to the property already taxed under the rule 
in the first clause, which may be used by parties ,in carrying on 
these callings, occupations and franchises. 

" Property " is a term of very large and general import, in 
wills and various transactions, and we are not prepared to doubt 
that, in the constitution and the revenue laws, it includes all 
values, nay, even more than could be claimed by creditors, heirs, 
legatees, or next of kin, as belonging to an estate. 

The ge7ieral rule, then, of the constitution intended to appor- 
tion the burthen upon the actual appraised value of ^\\ property, 
and in a manner which would, as %r as may, make its operation 
" uniform in respect to persons and property within the juris- 
diction of the body imposing the same." And had the nile 
stopped here, there could be little room left for construction. 
But there are exceptions to it, which show that an inflexible, 
universal rule was not intended. And it becomes a question 
how far the legislature may depart from it — in what instances — 
and whether the present is warranted as one falling within the 
exceptions. The first exception is to the very basis of the rule 
itself, for the first section of the ninth article authorizes a capi- 
tation tax. 

The second section lays down the general rule, and the second 
exception is contained in the last clause Tof that section. It pro- 
vides that "the General Assembly shall provide for levying a 
tax by valuation, so that every person and corporation shall 
pay a tax in proportion to the value of his or her property ; such 

DECE]\'IBER TERM, 1855. 293 

The Illinois Central Railroad Compauy v. The County of McLean. 

value to be ascertained by some person or persons to be elected 
or appointed in such, manner as the General Assembly shall 
direct, and not otherwise ; but the General Assembly shall have 
the power to tax peddlers, auctioneers, brokers, hawkers, mer- 
chants, commission merchants, showmen, jugglers, innkeepers, 
grocery keepers, toll bridges and ferries, and persons using and 
exercising franchises and privileges, in such manner as they 
shall from time to time direct." The third exception is in the 
sixth section, which provides that " the specifications of the 
objects and sbujects of taxation shall not deprive the General 
Assembly of the poAver to require other objects or subjects to be 
taxed, in such manner as may be consistent with the principles of 
taxation fixed in this constitution." In laying a tax upon ped- 
dlers and others enumerated, and in selecting and taxing other 
" objects and subjects" not specified, w^hat mode and manner 
of taxation will" be consistent with the principles of taxation 
fixed in this constitution ?" It was contended that the tax con- 
templated upon " peddlers " and others, is in the nature of a poll 
or capitation. This is not a satisfactory interpretation. The 
poll is provided — merely arbitrary assessments and discrimina- 
tions, to throw personal burthens upon the persons engaged in 
laudible and useful occupations, could not have been the motive 
or reason, for the provision. By examining the original report 
of this article, as made to the Convention (Convention Journal, 
79 to 81), and the various propositions of amendment (pages 
214, 215, 221, 222, 226), it will be apparent that the design 
was not merely to tax the u eful professions, or industrious call- 
ings which do not need or use property in their prosecution, but 
those only which held or used but an uncertain or small amount, 
and those of an useless character, as showmen, jugglers, &c. It 
was proposed to include " doctors, law^yers, and clerks of the 
circuit and count;y commissioners' court," (p. 215) but rejected, 
evidently showing that the design was not to tax professions 
merely as such, nor incomes. The whole design, as we appre- 
hend the constitution, was to enable the legislature to make the 
burthen proportionate, by applying a different rule to these occu- 
pations. For peddlers, auctioneers, brokers, hawkers, merchants, 
commission merchants, inn and grocery keepers, may, and most 
usaully do, carry on large salesand exchanges of property, and 
at no one time have in possession anything like a fair propor- 
tionate amount of property to their annual sales and profits, 
which could be assessed or taxed. So with toll bridges, ferries 
and corporations exercising some of the franchises and piivileges, 
as bankers. Again, showmen and jugglers, with little property, 
and itinerating, would bear no fair proportion to the amount 
gained by their arts, with a little trumpery for deception. Some 


The Illinois Central Railroad Company ik The County of McLean, 

corporations invest all the capital used by them in taxable sub- 
jects, lands, houses, manhinery, materials and manufactures from 
them ; others have a portion, while another class, like mer- 
chants and others, is in floating, exchangeble values, in goods, 
produce, and bills and notes ; and others with little taxable 
property, and large but profitable credits. Power, then, to make 
a flexible rule became indispensable to reach and remedy an ine- 
quality inseparable from the nature of these circumstances, and 
irremediable by a uniform and proportionate rule, assessed on 
actual appraisements of visible property. Therefore, this gen- 
eral power to tax these, which, when exercised generally upon 
all, or specially upon one corporation, may well commute, esti- 
mate, include and compound within the rule of assesement, what- 
ever of real or personal property the individual or corporation may 
use in the calling, or with the franchise. 

Such, we view, the rule adopted with the plaintiff, by taking 
five per cent, of the gross income, in lieu of all taxes for a period 
of six years, as w^ell as for the grants, privileges and franchises 
conferred, and after that period expires, to put them upon the 
footing of an assessment equal to two per cent, addition to 
the five per cent. 

If the power is given to discriminate, as w^e think clearly is 
the intention, we have no right to scrutinize its policy, to deter- 
mine whether a greater approach to, or degree of, equalization 
has been attaind by the mode adopted, than would have resulted 
from the general rule applicable to the property of persons. 

The power, then, to fix upon some other rule than actual ap- 
praisement of property, as applicable to the calling, &c., enu- 
merated, leaves the mode of assessment and valuation to the 
wisdom of the General Assembly, and the question ceases to be 
one between the railroad and the county, and becomes one, in 
the light in which it has been discussed, between the county and 
the State, in relation to the rights of the former to a share of 
the revenue so raised, proportioned to the per cent, levied for 
county purposes. We do not here intend to discuss the power 
and right of the State, to appropriate to State purposes, all the 
revenue derived from taxes on peddlers and others enumerated. 

It is enough for the purposes of this case; if the legislature had 
the power exercised in this case, and if the plaintiffs are exempt 
from taxation under the general mode by appraisement, when 
they are taxed under a special provision authorized by the lat- 
ter part of the second section. The only restriction upon the 
powers contained in the old constitution in this respect, is that 
forbidding a legislative, and requiring an actual appraisment. 
In other respects the powers would seem to be enlarged, or 
rather, those formerly implied, because not forbidden, are now 

DECEMBER TERM, 1855. 295 

The niinois Central Rnilroad Company r. The County of McLean, 

expressed. Courts will not seek by contruction to denj or 
destroy the essential powers of the legislature, nor hold their 
acts void in mere cases of doubt. 

There is no subject upon which the courts have sustained 
legislative power with greater liberality of construction than on 
this of the revenue. And it is needful that they should have a 
power commensurate with the means required to furnish vitality 
to the body politic. 

Under the old constitution, with provisions very similar to the 
first clause of the second section, and without any like the last, 
or like the sixth section, the court held, that an exemption of 
the State Bank of Illinois from all taxation in consideration of 
the payment of half per cent, on their capital stock, was valid 
and constitutional ; State Bank of Illinois v. The People, 4 
Scam. R. 303 ; and the court cite and rely on The State v. Ber- 
ry et al., 2 Harrison N. J. R. 80, where it was held that the 
property generally of a railroad was exempted upon the pay- 
ment of a certain sum, under a provision " that no further or 
other tax or impost shall be levied or assessed upon said com- 
pany." This was again confirmed and foUoAved, on a similar 
provisons in the Camden and Amboy Railroad Co. i). Hellegas 
et al., 3 Harrison R. 11 ; the same plaintiffs V. the Commission- 
ers of Appeal, 3 Harris. R. 71, the court again decide, that the 
payment of a gross sum is not a tax for their franchises, but 
all their property, and there is no distinction between State 
and county township taxes, for every tax is a State tax, 
and the State appropriates the proceeds to what purpose she 
pleases. And again in 1845, in Gardner, Assessor of Jersey 
City V. The State, 1 Zabriskie R. 557, the court adhere to and 
approve the former decisions. 

A like commutation of the tax by provision of the charter 
was recognized and enforced in 0' Donnell, President, Yazoo City 
V. Bailey etal.. Assignees Commercial Bank of Manchester, 24 
Miss. R. 386. In Debolt v- The Ohio Life Insurance and Trust 
Co., 1 Ohi© State R., N. S., 569, the court deny the power of the 
legislature to suiTender the power of taxation to a company as an 
exemption, but hold that they may tax the property of corpora- 
tions as they do others, from time to time. They construe the 
sixtieth section of the general banking law of 1845, which pro- 
vided for banks paying semi-annually six per cent, on the profits 
after deducting expenses and losses, and which was declared 
to be " in lieu of all taxas to which such company or the stock- 
holders thereof, on account of stock owned, would otherwise be 
subject," not to be a contract^ but to be subject to repeal and 
alteration by the legislature, and other taxes or modes of 
assessment may be adopted. 


The Illinois Central Railroad Company v. The County of McLean. 

Courts will not intend any provisions of the kind to curtail, 
abridge or suspend the power of regulating the tax laws, and 
changing the rate or mode unless clearly expressed and so 
intended. So a bonus paid by a company on obtaining its char- 
ter, will not be construed as an agreed tax or in lieu of taxes. 
If so, it would be void under the bill of rights in the constitu- 
tion of Maryland. But the corporate property and shares in 
the Baltimore and Ohio Railroad Company were exempted from 
taxation by the act of 1826, and that exemption was sustained. 
Mayor and C. C. of Baltimore -y. Bait, and Ohio R. R. Co., 
6 Gill. R. 288. 

Pennsylvania and Massachusetts hold railways exempt from 
taxation, upon the ground that they are public works, estab- 
lished by public authority, like canals, turnpikes and highways. 
Inhabitants of Worcester v. The Western Railroad Corporation, 

4 Metcalf R. 564 ; Railroad Company?). Berks County, 6 Barr. 
R. 70 ; and so of other works. Schuylkill Bridge Co* T. Frair- 
ley, 18 Serg. and Rawl. R. 422 ; Leheign Coal and Navigation 
Co. V. Northampton county, 8 Watts Serg. R, 334. But I 
know of no other State which extends this immunity upon this 

But an express exemption upon paying a school tax and mak- 
ing a road, was sustained in the cases of Gordon and Cheston 
v. The appeal Tax Court, 3 How. U. S. R. 133. 

In Arkansas the constitution requires a rule of equality, and 
forbids a discrimination between different species of the same 
kinds, selected for taxation, Stevens et al. -w. The State, 2 
Arkans. R. 291 ; Pike v. The State, 5 Arkans. R. 204. Such 
is the rule settled by this court in The President and Trustees 
of Jacksonville «. McConnell, 12 III. R. 138. 

But this principle is not violated, by the l<^vy of a local tax 
upon a particular district, for local public uses. Shaw v. Dennis, 

5 Gill. R. 405 ; Kirby v. Shaw, 19 Penn. State R. 258. 

Nor does it prevent a discrimination of the subjects and 
objects of taxation, ( Sawyer «. City of Alton, 3 Scam. R. 127 ; 
Artcile 9, Sec . 6, New Constitution, ) but only requires the objects 
and subjects enumerated in the constitution, and those additional 
ones authorized to be selected when taxed, to be made to bear 
their just proportion with all of like kinds within the jurisdic- 

I have presented these decisions to show the constant sup- 
port given to this vital power of government, not only to levy 
such taxes as the public exigencies demand, but every dispo- 
sition the legislattu'e may in their wisdom make, with a view to 
promote the public good, unless in palpable violation of the con- 
stitutional rights of the tax-payer. The case before us is not 

DECEMBER TERM, 1845. 297 

The Illinois Central Railroad Company ?'. The County of McLeen. 

an exemption or iniraunity f rom tlie payment of taxes. Nor do 
I hold to a power to discriminate and exempt the owners of the 
same kinds of property provided to be taxed, of a change of 
the rule of valuation and assessment. But the exemption of 
the donated lands may be regarded as an exemption of the 
public property until its sale, or the performance of the con- 
dition which will release the lien of the State. The other 
property of the company falls within the power of the State, as 
I have shown, to be assessed by such rule as the legislature may 
adopt, and in this instance have adopted,- for taxing those 
corporations or persons, "using and exercising franchises and 
privileges." It is for the legislature and not this court to 
determine the " manner " in which this shall be done. And it 
may include the property owned or used by them, and is not 
necessarily confined to a tax upon the franchise or privilege 

We are therefore clearly of opinion that the act of the legis- 
lature in these provisions is constitutional, {a) 

Judgment of the Circuit Court is reversed 

Sepakate opinion by Skinner, J. By an act of Congress, 
approved September 20th, 1850, the federal government granted 
to the State of Illinois certain of the public domain lying within 
this State, to aid in the construction of a railroad in said act 
named, and now called " The Illinois Central Railroad." The 
5th section of the law making the grant is as follows : '■''And he it 
further enacted^ that if the said railroad shall not be completed 
within ten years, the said State of Illinois shall be bound to pay 
to the United States the amount which may be received upon 
the sale of any part of said land by said State, the title to the 
purchaser under said State remaining valid ; and the title to the 
residue of said lands shall re-invest in the United States, to have 
and to hold the same in the same manner as if this act had not 
been passed." U. S. Laws of 1850, 466. 

The legislature of this State, by an act, approved February 
11th, 1831, created the " Illinois Central Railroad Company, " 
and authorized said Company to build and operate the railroad 
contemplated by the law of Congress. By the act of incorpo- 
ration, the company undertook, "in consideration of the grants, 
privileges and franchises conferred," to complete the entire 
enterprize within six years, and to pay annually to the State a 
certain per centage of the gross earnings of the railroad 

The act provides for vesting in the company the title to the 
lands granted by the United State to this State, for the purpose 

(a) Sedg. C. L. 631; Gordon vs. The Appeal Tax, Comt. 3 How. U S. K. 133; 
Jefferson Branch Bank, 1 Black U S. K. 436, Cooley Con. L. 127 & note. 


The Illinois Central Railroad Company v. The County of McLean. 

o£ enabling -the company to build the railroad, and for taking, 
simultaneously therewith, from the company, a deed of trust to 
certain persons named on the part of the State conveying the 
same property, and also the railroad to be constructed, and all 
property of the company appertaining thereto, in trust, to secure 
to the State full performance on the part of the company, and 
to "indemnify the State of Illinois against all and every claim 
of the United States government, "under the act of Congress 
making the grant tothe State ; and provides, that " the lands so 
selected under said act of Congress, and hereby authorised to 
be conveyed, shall be exempt from all taxation under the laws 
of this State, until sold and conveyed by said corporation or 
trustees, and the other stock, property and effects of said com- 
pany shall be in like manner, exempt from taxation, for the 
term of six years from the passage of this act." Laws of 1851, 
61. No question is made in this case as to the due execution of 
the conveyances and investitures of title contemplated b y legis- 

The third section of the ninth article of the State constition- 
tion declares that "property of the State and counties, both 
real and personal, and such other property as the General Assem- 
bly may deem necessary for schools, religious and charitable 
purposes, may be exempted from taxation." The right there- 
fore of the legislature to exempt the property of the State from 
any and all taxation is unqustionable. Although the deed of 
trust vests the legal title to the property of the Illinois Central 
Railroad Company, iu the trustees in the deed named, the com- 
veyance in trust is for the benefit of, and operates as a mortgage 
to the State. The State is the party beneficially interested, and 
occupies substantially the relation of mortgagee, and the com- 
pany that of mortgagor. A sale of the property for taxes, in 
pursuance of law, would vest the whole title in the purchasei, 
and thereby defeat the operation of the deed of trust and 
destroy the security it was intended to vreate in favor of the 
State. Atkins v. Hinman, 2 Gil. 449. 

I do not doubt that the State, by virtue of the act incorpora- 
ting the Illinois Central Railroad Company, the conveyance to 
the company, and the deed of trust from the company, has such 
an interest in the property of the corporation, as it contem- 
plates by the clause of the constitution before quoted, and that, 
therefore the legislature may rightfully exempt from taxation 
the property so conveyed in trust, while the same remains a sub- 
sisting security to the State. 

The act of incorporation evidently contemplates the completion 
of the railroad within six years from the passage of the act and 
that until such completion, the property, the right to tax which 

DECEMBER TERM, 1855. 299 

The Illinois Central Kailroad Company v. The County ol McLean. 

is in question, should remain free from taxation. The period 
for performance on the part of the company has not expired, 
and nothing appears in the record to show that there has been 
full performance on the part of the company, and that the State 
is discharged thereby from liability to the United States arising 
out of the grant to the State. Until such performance, the State 
has a subsisting interest in the property, and the necessities of 
self-protection incident to sovereignties, as well as to persons, 
Avould seem to suggest the propriety and right, in the State, of 
protecting the security from destruction by sale of the property 
for taxes, had the constitution been silent upon the subject. 
For these reasons I concur in the judgment of this court 
reversing the decree of the circuit court. But I cannot concur 
with the majority of the court in the construction given to the 
last clause of the second section of the ninth article of the con- 
stitution : " but the General Assembly shall have power to tax 
peddlers, auctioneers, brokers, hawkers, merchants, commission 
merchants, showmen, jugglers, innkeepers, grocery keepers, toll- 
bridges and ferries, and persons using and exercising franchises 
and privileges, in such manner as they shall from time to time 
direct." I understand this clause as inserted to avoid all ques- 
tion, and as an express declaration of the power of the legis- 
lature to tdjx franchises and privileges exercised by regulation, 
of law by some, to the exclusion of others, and which are not 
common to all the people of the State, without reference to 
municipal regulation, and as having no sort of reference or 
application to i\xQ property of the corporations or persons exer- 
cising such franchises and privileges. To my mind, this seems 
too plain for argiment. 

Judgment reversed. 

Note by the Reporter. — At December term, 1856. of the Supreme Courtof 
Ohio, the following points wheie ruled which, from their similarity to those de- 
cided in the foregoing case, it is thought proper to insert here : 

Matheny, for himself and otJiers, vs. Golden, Treasurer of Alliens county , 
Brinkerholf, J. , delivered the opinion of a majority of the Court. Where the 
State, by an act incorporating the Ohio University, vested inthat institution two 
townships of land, for the support of the University and theinstruction of youth 
and, in the same act, autliorizedthe University to lease said lands for ninety-nine 
years, renewable forever, and provided that lands thus to be leased should for- 
ever thereafter be exempt from all State taxes ; Held— 

1. That the acceptance of such leases at a fixed rent or rate of purchase by 
the lessees, constitutes a binding contract between the State and the lessees. 

2. A subsequent act of the legislature, levying a State tax on such lands, is a 
''law impairing the obligations of contracts,'* within the purview of the tenth sec- 
tion of the first article of the constitution of the United States, and is, therefore, 
pro tanto, null and void. 

3. "Where one ol the lessees of sucb lands sues, as well for himself as for many 
other lessees of the same lands, holding on like terms with himself, equity will 
interpose to prevent multiplicity of suits and aflbrd a remedy by injunction. 


Steie-leman et al. v. McBride. 

Calvin Steigleman et al., Plaintiffs in Error, v. A. 
McBride, Defendant in Error. 


A mecliiiiiic's lien, created by the statute, is not upon the spocilic thing furn- 
ished, nor upon the interest alone of the party in tlie land, for whom fusnished, 
but, against the land, to be satistied in any way consistent with the statute and 
the principles ofequity. 

Generally, although all the materials, furnished, upon which the Hen accrues, are 
destroyed or removed, the lien still continuies against the land. 

In proceeding, under this lien, against a party in possession, though he should 
not be the owner, the landmay besoid, and the purchaser will take the title as 
against him ; and whatever interest he had in the land will vest in the purchaser 

Persons not parties to the proceeding will not be aft'ected by it. 

If the work done or the materials furnished, is so furnished or done upon distinct 
primises, the lien mustbe against each of tne several premises, according to the 
value of worlv and matei'ials and not against both for the aggregate amount. 

The lien does not follow the materials furnished , from place to places , but is upon 
the laml ; severed from the land, they become ijersoual property initil again 
united or merged in the land. 

The facts of this case will be found in the opinion of the court. 

S. T. Sawyer, for Plaintiffs in Error. 

II. W. Billings, for Defendant in Error. 

Skinner, J. This was a petition for Mechanics' lien, by Stei- 
gleman and another, against McBride and another. The petition 
shows that petitioners had furnished labor and materials for 
defendants, in the erection and repair of a certain saw-mill and 
barrel machine, situated upon certain premises in Alton, in the 
possession of defendants ; that defendants afterwards removed 
said mill and machinery to and upon other premises in Alton, in 
their possession ; and that, after the removal, petitioners in like 
manner furnished labor and materials in the repair of the same. 
The circuit court sustained a demurrer to the petition, and this 
decision is assigned for error. 

The defendants below contend that the petition is insufficient 
because it does not show that they are the owners of the prem- 
ises, and because the mill was removed from the ground upon 
which it was originally erected. 

Although the first section of the mechanics' lien law gives, in 
terms, the lien against the land upon which the work is done, 
and for improving which the materials are furnished, as against 
the party contracting for the same, yet the seventeenth section 
provides, " that if the person who procures the work to be done, 
or materials furnished, has an estate for life only, or any other 

DECEMBER TERM, 1855. 301 

Steigleman et al. v. McBride. 

estate, less than a fee simple, in the land or lot on which the 
work is done or materials furnished, or of such land or lot, at 
the time of making the contract, is mortgaged, or under any 
other incumbrance, the person who procures the work or mate- 
rials shall nevertheless be considered the owner, within the 
meaning of this chapter, to the extent of his right and interest 
in the premises ; and the lien herein provided for shall bind his 
whole estate and interest herein, in like manner as a mortgage 
Avould have done ; and the creditor may cause the right of 
redemption, or whatever other right or estate such owner had 
in the land at the time of making the contract, to be sold, and 
the proceeds of sale applied according to the provisions of this 
chapter." (a) 

The twentieth section provides for the payment of incum- 
brances, prior and subsequent, and of the mechanics' lien, and 
for the application of the proceeds of the sale, according to the 
rights and liens of the respective parties ; paying the mechanics' 
lien before subsequent incumbraces, and to the exclusion of 
prior, except to the extent of the value of the land, excluding the 
improvements on account of which the lien accrued. When work 
is done or materials furnished under the provisions of this law, 
they become a part of the land, and, together with the ground 
upon which the improvements is made, form one entire thing, that 
is, real estate ; and, however many interests there may be in the 
land, and by what ever names they may be kov.'u, all together 
constitute the land. 

The land may be be sold in this proceeding, the value evolved 
into money, and the money applied according lo the rights of 
all parties in interest and before the court. The lien created by 
the law is not against the specific^thing furnished, nor necessarily 
against the interest alone, in the land of the party for whom 
they are furnished, but againist the land, and should be satisfied 
out of the same in any manner consistent with the statute, and 
the principles of equity. 

Although the entire materials, buildings and improvements, 
on account of which the lien accrued, be removed, rendered 
worthless, or destroyed by accident, the lien still continues 
against the land. Exception may of necessity perhaps exist 
to these general rules. 

The person for whom the work is done or materials furnished 
may have a life estate in the land, determinable at a period 
uncertain, as the life may be long or short ; he may have a right 
of possession for a period certain, and the improvements and 
erections may be of a character entitling him to remove them 
on the surrender to the owner of the fee. In the like case we do 
not attempt a construction of the statute, A party in posses - 

(a) Donaldson vs. Holmes, 23 ni. R. 86. 


Johnsons. Richai'^son etal. 

sion of land is presumed to be in rightfully, and with claim of 
the fee, to be the owner of the fee. Mason ^. Park, 3 Scam 

532 ; Davis v. Esley, 13 111. 192, 198. 

In a proceeding against the party in possession, though he be 
not the owner, the land may be sold and the purchaser will take 
the title, as against him. Switzer et al. v. Skiles, 3 Gil. 529, 

533 ; Ferguson w. Miles, ibid. 353, 365. 

Under the statute relating to mechanics' liens, as against the 
party for whom the work is done or materials furnished, and 
who is in possession, the land may be subjected to sale, and 
whatever interest he may have therein, be it more or less, will 
vest in the purchaser. Turney -y. Saunders et al., 4 Scam. 527 ; 
Garrettt v. Stephenson et al., 3 Gil. 261, 280. («) 

But persons not parties to the proceedings would in no manner 
be affected thereby. It then follows, that whatever interest 
these defendants had in the several premises at the time the 
liens accrued, in this proceeding against them alone, may be 
subject to satisfaction of the debt for the work done, and 
materials furnished ; and the lien must be against each of the 
several premises, according to the value of work done and mate- 
rials furnished upon them respectively, and not against both for 
the aggregate amount. 

The lien, being against the land, does not follow the materials 
furnished, from place to place. When served from the land, 
they became persona oroperty, and must be governed by the land 
rules relating to such property, until again united with, or 
merged in the land. 

Taking the petition as true upon demurrer, the petitioners 
are entitled to liens against each of the premises described in 
their petition to the extent of the work done and materials fur- 
nished, and to a decreft subjecting them separately to sale, for 
the satisfaction of the liens against them respectively. (6) 

Decree reversed and cause remanded. 

Decree reversed. 

Joel Johnson, Appellant, «. William B. Richardson et al.^ 



lu an action in tort, founded on a bi'eacli of duty, sc^-king the recovery of dam- 
ages and not a spectic thing, tlie nou-joindcr of any of the owjiers can only be 
taken advantage of by plea in abatment. If such plea is not interposed, the 
plaintiffs recover proportionately to their interests or damages, and the other 
joint owners may afterwards sue and recover their proportion of the whole 

(a) Donaldson vs. Holmes, 23 m. R. 87. 
{b) James vs. Harabletoa, 4'illl. U. 308. 

DECEMBER TERM, 1855. 303 

Johnson v. Richardson et al. 

Guests at an inn. although they know that an iron sale is provided for that pur- 
pose, are not bound to deposit their money therein or with the innkeeper. 

Innkeepers are bound to protect the property of their guests^; and in case of loss 
or injury to it can only absolve themselves from liability by showing that they 
were not in fault. The burthen of proof is upon the innkeeper. 

If the guest should unnecessarily expose his money to danger, or carry too large 
a sura with him, a diflerent rule might prevail. 

The only questions raised upon thi-s record are fully presented 
in the opinion of the court, and render any other statement of 
the case unnecessary. 

A. Lincoln, for Appellant. 

S. T. Logan, for Appellees. 

Skinnek, J. This was an action on the case by Richardson 
and Hopkins against Johnson, One Brush, who was a co- 
partner of the plaintiffs below, having in his possession $434 of 
the partnership monej-, in company with one Thompson arrived 
by railroad late in the night at Springfield and put up at the 
hotel of the defendant. 

Thompson, in the presence of Brush, deposited with the clerk 
of the hotel a package of $3,OOo, which he was conveying for 
other persons, and the same was placed in an iron safe kept in 
the office of the hotel for such purposes. 

After supper Brush and Thompson were put into one room to 
lodge, Brush having the $434 in his pocket and Thompson hav- 
ing some |300 in his pocket. They found a good lock on the 
door and locked it, leaving the key in the lock on the inside, 
and the room was apparently safe against entry by thieves. Li 
the morning the door was found open and Brush's money stolen, 
but Thompson's was not. 

No special notice was given as to the keeping of valuables, 
nor touching pliability for their loss. The cause was tried by 
jury, a verdict found against the defendants for $286, and judg- 
ment was rendered thereon. The defendant asked for two 
instructions which the court refused to give, and upon these 
instructions the only questions of law involved in the case 

The first is based upon the supposition that the plaintiffs can- 
not maintain their action because of the non-joinder of Brush, 
who was joint owner with them of the money stolen. The 
action is in tort founded on a breach of duty devolved by the 
law upon the defendant by reason of his calling — a duty the 
law imposes on him towards all his guests from considerations 
of public policy and without regard to any implied contract of 


Johnson v. Richardson et al. 

The proper plaintiffs, in action in form ex delicto for injuries 
to, loss, or destruction of property, are all the joint owners of 
such property ; but where the remedy adopted seeks the recov- 
ery of damages and not the specific thing, the non-joinder of 
one or more of the joint owners can only be taken advantage 
of to defeat the action by plea in abatement. If such plea be 
not interposed the plaintifis may recover according to their pro- 
portionate interests in the property injured, cr their proportion 
of the damages sustained by all ; and the other joint owners, 
not joined, may afterwards sue and recover their proportion of 
the whole damages. Therefore the non-joinder of Brush under 
the general issue could only be available to lessen the plaintiffs' 
damages ; and the damages actually recovered in this case was 
t/iese plaintiffs' portion only of the whole money stolen. 1 
Chitty's PL 76 ; 2 Saunders'^ PL and Ev. 536 ; Edwards v. Hill, 
11 111. 22 ; Hart v. Fitzgerald, 2 Mass. 509 ; Wheelwright ^^ 
Depyster, 1 John. 471 : Brotherson -?). Hodges, 6 John. 108 
Bradish v. Schenk, 8 John. 151. 

The second instruction refused, assumes the law to be, that if 
the defendant kept an iron spfe for the deposit and safe keeping 
of money of his guests, and Brush knew the fact, but chose him- 
self to keep the money, the defendant as innkeeper is not liable 
for the loss, (a) 

The general doctrine deducible from the authorities, ancient 
and modern, is, that keepers ol publi ci7\ns are bound well and 
safely to keep the property of their guests accompanying them 
at the inn ; and in case such property is lost or injured the inn- 
keeper can only absolve himself from liability by showing that 
the loss or injury occurred Avithout any fault whatever on his 
part ; or, by the fault of the guest, his companions, or servants ; 
or, by superior force ; and the burden of proof to exonerate 
the innkeeper is upon him, for in the first instance the law Avill 
attribute the loss or injury to his default. (6) 

These rules, though seemingly hard on innkeepers, are 
founded on considerations of public utility, and deemed essential 
to insure a high degree of security to travelers and strangers, 
who of necessity must trust to and confide in the honesty and 
vigilance of the innkeeper and those in his employ. 2 Kent. 
Com, 592 to 596 ; Jones on Bailments 95, 96 ; Story on Bail- 
ments 471, 472. Some of the cases hold innkeepers liable in 
regard to the property of the guest at the inn, to the same 
extent that common carriers are in reference to goo Is commit- 
ted to them for transportation, that is, for all loss or injury not 
the result of inevitahle accident. 

But it is not necessary in this case to extend the doctrine 
relating to the liability of innkeepers, beyond the limit of uni- 

(a) See law of IfiGl, p. 133. 

(b) Kelsey vs. Bcri7, 42 Dl. R. 469. 

DECEMBER TERM, 1855. 305 

Johnson v. Richardson etal, 

versal recognition. Richmond "C. Smith, 8 Barn. & Cress. 9 ; Ben- 
nett V. Miller, 5 Dun. & East. 273 ; Quinton i). Courtney, 1 Hay- 
wood 40 ; Towson 'U. The Havre de Grace Bank, 6 Harris. & John- 
son 47 : Mason n. Thompson, 9 Piclc. 280 ; Shaw t). Berry, 31 
Maine 478 ; Barkshire Woolen Company ii. Proctor, 7 Cash. 417 ; 
Piper -^^ Mann, 21 Wend. 282 ; Nelson v. Axon, 1 McCord 509'; 
Metcalf V. Hess, 14 111. 129. 

In this case the money is shown to have been stolen, and it 
being the duty of the innkeeper to keep honest and faithful ser- 
vants, and to use every practicable guard against thieves, prima 
facie, the law holds him responsible for the loss, for, from the 
nature of the case the guest cannot be presumed to have the 
means of proving who is the guilty party, nor of establishing the 
fact of delinquency on the part of the innkeeper. 

Every traveler must carry with him more or Jess money, and 
it would be unreasonable to limit him to a sufficient amount for 
immediate use. His journey may be long, and its exigencies 
may require a much larger sum than the amount in this case. 
Strangers are usually compelled to rely wholly on their money 
for living and transportation, and without money their conditior^i 
would be such as none would willing hazard. 

To compel them to place their money in the custody of tbte- 
innkeeper, his clerk, or servant, would create new perils in 
traveling, and place the guest at the mercy of the publican, hon-- 
est or dishonest, and he would be likely to know nothing of the 
character of the person into whose keeping he might chance to fall. 

If the traveler is compelled to give his money over for safe 
keeping on his arrival at a hotel, what proof could he- be ex- 
pected to retain of the fact, or of the amount ? and how practi- 
cally unavailing would be the remedies of the law in case of the 
dishonesty of those to whom the surrender must be made. Such, 
a rule we think not only inconvenient, but unreasonable and, 

We do not intimate an opinion that innkeepers are respon- 
sible in all cases of loss of their guest's property. The guest may 
unnecessarily expose his money to danger, or unnecessarily carry 
with him large sums, Avhich no prudent man would do in a coun- 
try where exchange can be readily obtained. 

In this case, the sum was not unreasonably large to carry 
about the traveler's person, and we cannot hold that he was at 
fault in not depositing it with the innkeeper. 

Judgment ajjirmed, 
ILL. REP. — xvir. — ^19 







Nicholas P. Iglehart, Plaintiff in Error, v. Abijah W, 
Pitcher. Defendant in Error.. 


The statute of 1853, regulating practice in certain courts in Cook County, does 
not intend to make the service of a copy of declaration and rule to plead a part 
of the record ; these should be incorporated into a bill of exceptions if ob- 
jection to tliem is to be taken. The absence of them from the record will 
not be taken as evidence tliat they were not served. 

The judgment in this case was rendered by J. M. Wilson, 
Judge, at vacation term of the Cook County Court of Common 
Pleas, in January, 1855. The judgment recites that, it appear-- 
ing to the court that due personal service of summons had been 
had upon Iglehart, at least ten days previous to the first day of 
the term, but not appearing, judgment was entered, &c. Errors 
assigned are, that court had not jurisdiction to render judgment, 
because it does not appear by the record that Iglehart was served 
with a copy of the declaration ten days prior to the said vaca- 
tion term, and because said judgment was rendered at a vacation 
term and no copy of the declaration or rule to plead was served 
ten days before the term. 

Arnold, Earned and Lay, for Plaintiff in Error. 

ScAMMON and McCagg, and Shumway and Waite, for Defend- 
ant in Error. 

308 OTTAWA, 

Iglehart^. Pitcher, 

ScATES, C. J. A default being entered in the court below, 
for want of a plea, the only question Ave deem it necessary to 
notice is, whether it be necessary to show service of a copy of 
the declaration and rule to plead, to sustain the default. 

We are of opinion that the statute of 1853, regulating the 
practice in these courts, does not require nor intend to make 
the service of these copies a part of the record any more than 
the copies of the instruments or account sued on. They must 
be incoporated into the record by bill of exceptions. Their 
mere absence from the record cannot, therefore, be taken as 
evidence that they were not served, and can raise no presump- 
tion against the correctness and validity of the judgment. 

Every reasonable intendment will be made in support of the 
judgments of courts of general jurisdiction. 

We not only presume in their support due notices and rules, 
to support the default — for it is the act and Order of the court, 
and not of the plaintiff — but we will also presume that the plain- 
tiff produced, and the court heard, sufficient evidence to sustain 
the finding and judgment thereou.(<2) 

The assignment of error in this case seems to proceed upon 
the assumption that a default is erroneous, not only if taken 
without giving copies, but unless the fact of sereice of chem 
affirmatively appear in the record. 

But we do not think this view supported by the provisions of 
the act. Proof of the rule to plead, and the services of copies 
need not appear, any more than rules to plead under the old 
practice, mth the copy of the instrument ; and 1 am not aAvare 
that this was ever considered necessary to bo shown by any 
practice on the circuit, or decision of this court. It might be 
otherwise, and placed upon a different and stronger reason, were 
the plaintiff entitled, as at common law, to enter up his own 
order for default, at the clerk's office in vacation, without the 
intervention of the court. 
Judgment will be affirmed. 

Judgment affirmed. 

(a) Rich V. Hathaway, 18 JU. R S-tO. 

JUNE TERM, 1856. 309 

Rose V. Btickland, and Whittemore v. Buckland. 

George W. Rose, Appellant, v. Thomas A. Buckland, 


Daneel W. Whittemore, Appellant, ?;. The Same, 

Appellee ; and 

Amos Whittemore, v. The Same. 


Congress has power and jurisdiction, over land granted as bounties to soldiers 
ol the war of 1812, for the purposes of protection, disposition and investiture 
of title, so long- as the title remains in the United States. 

The limitations and prohibitions of the act of Congress of 1812, as also the act ol 
1842, in relation to bounty lands, restricting the sale and transfer of such 
lands, are constitutional, and do not infringe the rights of the States. All as- 
signments or convej'anees of such bounty lands, or of warrants therefor, prior 
to the issuing of the patent, are void. 

It appears by the bill for an injunction filed in the case of 
Rose, that Whittemore. his grantor, purchased of Daniel Clough, 
the son of David Clough, who had been a soldier in the war of 
1812, all the right which he had to any land that might be 
granted to said David Clough, for services in said war ; and 
that Mary Clough, a daughter of said David, (Daniel and Mary 
being the only children aud sole heirs of David,) gave him a 
power of attorney, to procure the warrant for the lands from the 
United States, to which her father was entitled, to locate the 
same, sell the land and divide the proceeds with her. At the 
time of these bargains between Daniel and Mary Clough and 
Whittemore, the circumstances of the death of David Clough, 
were unknown, and Whittemore was put to expense and trouble 
in finding them out, and in procuring the facts requisite to obtain 
the warrant for the land. Daniel Clough gave a quit- claim 
deed to Whittemore, for his interest in the land to be obtained, 
for $75. Whittemore subsequently settled with Mary for her 
interest, and obtained that also. After these bargains, Whitte- 
more obtained the patent for the land, located it and sold to 
Rose. Rose resided on the land ai d has paid taxes for more 
than seven years. After the patent had been issued, the gran- 
tees of Buckland, the appellee, obtained a quit-claim deed from 
Daniel and Mary Clough, for the land located by the patent, for 
a consideration of $24, with a full knoAvlege, as the bill 
alleges, of all the facts of the agreements and bargains between 
Daniel and Mary Clough and Whittemore. That the property 
at the time of the quit-claim to Buckland, was worth $3,600. 
Buckland brought ejectment against Rose, and Rose filed this 
bill for an injunction, seeking to restrain Buckland in the pros- 
ecution of his ejectment. A demurrer was sustained, and the 


?ose V. Buckland, aud Wbittemore v. Buckland. 

hill was dismissed for want of equity, by Leland, Judge, at 
Januar;y term, 1855, of the Bureau Circuit Court. Complain- 
ants appealed. The facts and questions in the three eases were 
similar, in so far as the opinion of the court afl'ects the same. 

Glover and Cook, for the Appellants. 

M. T. Peters, for the Appellees. 

Skinner, J. The laws of Congress, of December 24th, 1811, 
and January 11th, 1812, gave one hundred and sixty acres of 
land to each of the non-commissioned officers and soldiers, \^ho 
served in the late war of the United States with Great Britian, 
upon their discharge and faithful performance ^pf their duties 
while in service, and upon such terms and conditions as Congress 
should thereafter by law provide. 

The law of Congress of May 6th, 1812, provides for the sur- 
vey of certain of the public domain ; for the locating of mili- 
tary bounties therein ; for the issuing of warrants for the period 
of five years, to the parties entitled to such bounty ; for the 
granting of patents to them ; and provides ; " that no claim for 
military land bounties shall be assignable or transferable in any 
manner whatever, until after patent shall have been granted in 
manner aforesaid. All sales, mortgages, contracts, or agree- 
ments of any nature whatever, made prior thereto, for the pur- 
pose, or with the intent of alienating, pledging or mortgaging 
any such claim, are hereby declared and shall be held null and 

This law also declares that the land shall not be subject to 
sale on account of the debts and contracts of the party entitled 
thereto, existing at the date of the patent. The law of Con- 
gress of April 16th, 1816, upon the same subject and carrying 
out the intention of the former law, provides: " That no transfer 
of land granted by virtue of this or any other law, giving boun- 
ties of land to non-commissioned officers, musicians, or privates, 
enlisted during the late war, shall be valid, unless the contract 
or agreement therefor, or letter of attorney giving power to sell 
or convey, shall have been executed after the patents shall have 
been issued anl delivered to the persons entitled thereto." 

By the law of Congress of July 27th, 1842, the party, enti- 
tled to land bounty for services in the war of 1812 Avith Great 
Britian (his heirs or legal representatives), is authorized to 
enter the amount of land he is entitled to under the previous 
laws, at the public land offices of the United States. 

This law provides : that the certificate of location issued 
under the provisions of this act, shall not be assigable, but the 

JUNE TERM, 1856. 311 

Rose V. Buckland, and Wbittemore v. Buckland. 

patent shall in all cases issue in the name of the person origin- 
ally entitled to the bounty land, or to his heirs or legal repre- 
sentatives." From the passage of the first laws, granting land 
bounties up to almost the present time, Congress has enacted 
laws reviving and continuing expired authority to prove right to 
and obtain military bounties under those early laws, and carry- 
ing out their spirit and intent. 

These bills show that the ancestor of the patentees of the 
land in controversy was entitled to bounty land as a soldier of 
the war of 1812, and that it was patented to them for such 
bounty ; that the entry was made under the act of Congress of 
1842 ; that the patent issued to them in 1845 and that the 
complainants claim under the patentees by conveyance executed 
before the issuing of the warrant upon which the entry was 
made, and of course before the entry and before the issuing of 
the patent. The main question in these cases is, as to the 
validity of these conveyances. If Congress has power under 
the constitution of the United States to impose the limitations and 
restrictions upon the sale of the inchoate interest existing in the 
patentees by virtue of the laws prior to the granting of the 
warrant, or prior to the entry or to the granting of the patent 
and those limitations and restrictions extend to these convey- 
ances , it follows that they are void. Without the laws of Con- 
gress of 1812 and 1816 the law of 1842 would be wholly 
ineffctual. The bounty is given by these first laws, and the 
manner of dispensing it — of selecting the land — only is changed. 

Under the first laws the land was drawn by lot ; under the 
last, the warrantee may select the land by entry and the patent 
issues by authority of the laws creating the bounty, and the sub- 
sequent laws keeping them alive, and giving them more complete 

The limitations and restrictions imposed by the laws creating 
the bounty follow it until they are removed by law. There is 
no retrospective operation of law in these cases, in the light of 
invalidating contracts between individuals. The limitations and 
restrictions upon sale of the bounty are contained in the laws 
creating it, and without which it would not exist ; and the pro- 
hibition against assigning the certificate of entry contained in 
the law of 1842, is a part of the law giving the right to make 
such entry. 

The northwest territory embracing this State was ceded by 
individual States to the United States before the federal consti- 
tution went into operation, the proceeds of which were to 
constitute a common fund for the benefit of the whole. The 
ordinance of 1787, establishing political goverment over this 

312 OTTAWA, 

Rose V, Buokland, and Whittemore v. Buckland. 

territory, contains this clause: The legislature of the district 
or new States created out of said territory "shall never inter- 
fere with the primary disposal of the soil by the United States 
in Congress assembled, nor Avith any regulations Congress may 
find necessary for securing the title in such soil to bona fide 
purchasers." The constitution of the United States, subse- 
quently adopted, provides, " that the Congress shall have power 
to dispose of, and make needful rules and regulations respecting 
the territory or other property belonging to the United States," 
U. S. Constitution, Art. 4, Sec. 3. 

This constitution and the acts of Congress passed by authority 
thereof are, within their sphere, the supreme law of the land 

That the federal government is one of limited and enumerated 
powers, and that Congress can exercise only such authority as 
is conferiedby the federal constitution, is universally conceded. 
But in respect to those subjects where the power is expressly 
conferred by the constitution, it is supreme, and may execute 
the power by such laws as are necessary and proper for that 

The power to dispose of and make needful rules and regula- 
tions respecting the territory, or public domain, being expressly 
delegated by the constitution to the United States, it follows 
that the laws of Congress, made for the purpose of such dis- 
position and for the complete investiture of the title in the 
purchaser or donee, are made in pursuance of the powers dele- 
gated. 3 Story on Const. Sees. 1319 — 1322 ; 1 Kent's Com. 
242; Rawle on Const., 237, 240; Sergeant on the Const., 
Chaps. 31 and 33. 

The power and jurisdiction of Congress over the land in 
question, while it remained the property of the United States, 
for the purposes of protection, disposition and investiture of 
title, I cannot doubt. And such has been the practice of the 
general government, with the acquiescence of the States gener- 
ally, since the adoption of the federal constitution. 1 Kent's 
Com. 258 to 260. 

Laws granting bounties of land for meritorious public service 
have been passed by Congress at various times up to 1855, and 
most of them contain prohibitions against sale of the bounty 
while the title remained in the United States, or until the right 
should become tangible, by the issu'ng of a warrent or location 
of the land. 

Congress has passed pre-emption laws, provided for abjubicat- 
ing upon rights of individuals arising out of them ; and although 
by the laws of this State these pre-emption rights are treated as 
property, this court has unif ormily recognized these adjudications 
as valid and conclusive upon the parties. Gray -y. McLanee, 

JUNE TERM, 1856. 313 

Rose V. Buckland, and Whittemorew. Buckland. 

14 111. 434 ; Bennett ^^ Farrar et al., 2 Gill. 598 ; McConnel 
V. Wilcox, 1 Scam. 354 ; Delanney -y. Burnett, 4 Gill. 492 ; 
Turney v. Saunders, 4 Scam. 527 ; French '». Can, 2 Gill. 664. 
Congress has enacted penal laws against trespassing upon the 
government lands, and these laAvs have been recognized bv this 
court and enforced within the States. Carson v. Clark, 1 
Scam. 116. 

x\s a simple proprietary of the public lands, the federal gov- 
ernment would undoubtdly have the same power to attach con- 
ditions and restrictions upon grants to individuals as would 
ppertain to other proprietois. But in these cases it is not 
necessary to ascertain the limit of legislation relating to the pub- 
lic lands, prescribed to Congress by the constitution. The con- 
veyances which I hold invalid under the laws of Congress of 
1812 and 1816, were executed before the wan-ant was obtained 
upon which the entry was made, and the patent afterwards 
issued. At that time nothing existed but an inchoate right of 
the vendors to have a warrant authorizing the entry of 160 acres 
of land ; the land was not selected, and the title to it, both legal 
and equitable, was in the United States. The laAvs which gave 
the bounty, prohibited its sale while in this imperfect, intangible 
condition, as a "' rule and regulation^' respecting the public prop- 
erty, and the prohibition operated upon the contract. To bold 
these prohibitions unconstitutional, at this period, would unsettle 
titles to lands in this State to an alarming extent, and lessen 
the public confidence in the security of estates. 

I do not wish to be understood as conceding that Congress 
has power in any manner to aflect or control State laws operat- 
ing upon the contracts or property of its citizens. It does not 
follow that because Congress may not exempt land from the 
operation of the State laws when it has become private property, 
that Congress may not exercise jurisdiction over it for public prop- 
erty of the United States. Nor do I wish to be understood as 
intimating an opinion as to the effect of the prohibitions of the 
laws of Congress of 1812 and 1816, upon conveyances of the 
land executed after entry under the law of 1842. and before the 
issuing of the patent. 

In the case of Dyke et al. n. McVey, 16 111. 41, similar pro- 
hibitions against sale before the issuing of the warrant, under 
the late law of Congress granting bounties of land, approved 
September 28th, 1850, came before this court, and although the 
question of their validity was not ra'.sed, the power of Congress 
to prohibit such sales is clearly conceded. 

Until the United States have substantially parted with the 
land, and thereby divested the federal government of that juris- 

314 OTTAWA, 

Rose D. Buckland, and Whittemore v. Buckland. 

diction over it conferred by the constitution, I cannot question 
the rightful power of Congress to provide for its protection and 
disposition in such manner as maj be necessary and adapted to 
those purposes. 

I concur with the chief justice upon the other questions pre 
sented by record and discussed in his opinion. 

The several decrees of the circuit court are affirmed. 

Decrees affirmed. 

ScATES, C. J., DISSENTING. The only difference in the ques- 
tions presented in these three cases is, that the bill in No. 1, 
Kose '0. Buckland, sets forth facts sufficient to raise questions 
upon the statute of limitations, and constructive notice of title 
by recording. The others do neither, as to the first purchaser 
from the common vendors, the Cloughs, but all aver possessions 
and improvements, and constructive notice from these facts. 

We have gone into the question of the character of title and 
possessions necessary to a defence under the statute of limita- 
tions and its constructions, in Woodward v. Blanchard, at this 
term, 16 Ills. R. 424, and need not repeat the arguments or 
authorities here again. This title falls within the reasoning, 
arguments and conclusion of that case, and is supported by the 
cases referred to in it. The only difference which we need 
notice is, that there, the statute was set up as a shield, and 
here, it is, by the bill, asked to be made a sword, or so in part 
for compelling a quit-claim under decree for quieting title. We 
need only remark upon this ground of equity, that, standing 
alone, in the bill, it should have been dismissed, because it will 
constitute a good defence, if proven to the action of ejectment, 
sought to be enjoined. Though we may consider it in connection 
with other grounds of equity in the bill, and decree upon the 
whole, if sustained, as they are admitted by the demurrer ; yet 
the statute of limitations alone, would be no ground for retain- 
ing the bill for purposes of relief. So, in any point of veiw, we 
deem it very unimportant to discuss it. 

We have, in like manner, reviewed and discussed the question 
of implied notice by the i-ecording acts, and need only to refer to 
the case of Bourland v. the The County of Peoria et al., 16 111, 
R. 538. The recording in No. 1 was constructive notice, and is 
sanctioned in Bourland v. The County of Peoria, and cases 
there referred to, and others, and all the usual modes of actual 
and constructive notice sanctioned by courts of equity may still 
be shown, to charge the adverse title as not innocent. These 
bills all aver actual possession, and the making of improvements 
at the time of the sales and conveyances from David Clough, on 

JUNE TERM, 1856. 315 

Rose V, Buckland, and WMttemore v. Buckland. 

the 3rd July, and Mary Clough, on the 22nd July, 1852, to Paul 
Morrell. These are sufficient notice to put him upon inquiry. 
These were continued, and the recording of all the deeds under 
adverse claim of title added to them, (except that of David Clough 
to Amos Whittemore, of 25th Nov., 1840, and from him to 
Wintz,) (see 3 Sugd. Vend, and Purch. 469. and references,) 
before Bestor filed his deed for record, and before Buckland pur- 
chased. We think the facts and circumstances averred sufficient 
to put him and all prior grantors, under whom he claims, upon 
inquiry of the tenant or occupant in possession. This view must 
bring us to the consideration of the two titles, and a determina- 
tion as to which is best in equity. 

The objections to the title are, fraud on the part of Amos 
Whittemore, for which we see no foundation in tie foilis, and 
that Whittemore's contracts and conveyance of tie land were 
void under the acts of Congress. The title emanated in the 
bounty of the government to the ancestor, Danial Clough, for 
military services as a soldier of the revolutionary and late war 
of 1812. See act of Congress, 24 Dec, 1811^2 Story L. U. 
S., p. 1205, Sec. ; 2 p. 1208, Sec. 12. The act of May 6, 1812, 
set apart lands to satisfy these bounties, limited applications for 
warrants to five years, and declared that the bounty land war- 
rants should be issued only in names of the persons entitled, 
and that such warrants should not be assignable. 2 Story L. U. 
S.,p. 1243. Sec. 1,2. 

By the 4th section, page 1244, it is provided, " that no claim 
for the military land bounties aforesaid shall be assignable or 
transferable in any manner whatever, until after a patent shall 
have been granted in the manner aforesaid. All sales, mortga- 
ges, contracts or agreements, of any nature whatever, made 
prior thereto, for the purpose, or with intent of alienating, 
pledging or mortgaging any such claim, are hereby declared, and 
shall be held, null and void ; nor shall any tract of land, granted 
as aforesaid, be liable to be taken in execution or sold on account 
of any such sale, mortgage, contract or agreement, or on account 
of any debt contracted prior to the date of the patent, either by 
the person originally entitled to the land, or by his heirs or legal 
representatives, or by virtue of any process or suit at law, or 
judgment of court, against a person entitled to receive his patent 
as aforesaid." 

The act of 1816 renews the bounty in section three, and in 
section five provides," that no transfer of land granted in virtue 
of this or any other law, giving bounties of land," " shall be valid, 
unless the contract or agreement therefor, or letter of attorney, 
giving power to sell or convey, shall have been executed, after 
the patents shall be issued and delivered to the persons entitled 

316 OTTAWA, 

liose V. Bncklainl, smd VVhittemore v. Bucklaud. 

thereto." 3 Story Laws U.S., p. 1563. The time for issuinj; 
and locating warrants extended to 1819. 3 Story L. U. S., p. 
1661. These powers were extended, and revived and extended, 
from time to time. See 3 Story L. U. S., p. 1664. Sec. 1 ; p. 
1721, Sees. 1. 2 ; p. 1969, Sec. 1 ; 4 Story L. U. S., p. 2410, 
Sec. 1, Caps. 279, 280 ; 5 Story L. U. S,, p. 2873, Sees. 1, 2. 
This hist act was dated in 1842, and again extended the time 
for issuing, and allowed a locatian of them upon any land subject 
to entry, and provided " that the certificate of location obtained 
under the provisions of this act shall not be assignable, but the 
patent shall in all cases issue in the name of the person origi- 
nally entitled to the bounty land, or to his heirs or legal repre- 
sentatives." How far do these provisions afleot the complainants' 
title in equity? The Cloughs had only an equitable claim upon 
the government for land, and which was, by the receipt and deed, 
sufficiently described and assigned, for a valuable consideration ; 
and so, with the power of attorney, to operate on such an inter- 
est. This was settled, in principle, in Fisher v. Fields, 10 John. 
R. 502, in a strongly analagous case. 

The strongest ground assumed in the argument is, that by 
these several acts, the contract, sale and conveyance being made 
before the patent issued, were null and void. Such a position 
denaands very grave and serious consideration, before I can sanc- 
tion it. State governments are supposed to represent and exer- 
cise all the general powers of government, not delegated to the 
United States, nor prohibited to them by the constitutions of the 
United States, or the particular State. The government of the 
United States is one of special delegated authority, and is con- 
fined to those poAvers expressly so delegated, and such implied 
powers as are necessary to the exercise of those delegated, 
(Article 10 of amendments;) the remainder not prohibited, are 
reserved expressly to the state or the people. And the enume- 
ration in the constitution is not to be construed as denying or 
disparaging the remaininj»- powers of government. Article 9. 
In suits at common law, for values above twenty dollars, the trial 
by jury, and the rules of the cummon law are preserved in the 
courts of the United States. Article 7. The articles, from one 
to six, inclusive of amendments, contain a bill of declarative 
rights, restriccive of the powers granted to the United States. 

Article four of constitution, sections one and two, declare in 
like manner general rights ; and clauses two and three of sec- 
tion two, prohibit certain action of the States, to defeat the 
rights therein declared. So section three, clause one declares 
further rights and restrictions upon the power ; and section four 
is a declaration of rights , and a delegation of power to secure 

JUNE TERM, 1857. 317 

Rose V. Buckland, and Whittemore v. Buckland. 

But the great mass of powers delegated to the general govern- 
ment are found in the 8th section of the 1st article ; and the 
general explanatory restriction upon the powers granted is found 
in the 9th section. But no where in the whole instrument have 
I found a section or clause authorizing local territorial legislation 
upon contracts generally, or upon the common domestic and 
business relations of citizens of the States, or United States, 
Avithin the States, unless it be over the territory of the District of 
Columbia, and such places as are purchased with the consent of the 
State or States, in which the}'' are situated, for forts, magazines, 
arsenals, dockyards and other needful buildings, as provided in 
clause seventeen of section eight. 

The 18th clause gives the power to make all necessary and 
proper laws to carry into execution the powers delegated ; and 
amongst them we find (article 4, section 3, clause 2,) power to 
dispose of, and make all needful rules and regulations respecting 
the territory and other property belonging to the United States, 
but not to be construed to the prejudice of the claims of the 
United States or any particular State ; and, also, that the consti- 
tution and treaties made under its authority, and laws made in 
pursuance of it, are the supreme law of the land. We are 
bound by them and will obey them. 

But I claim the right, in adjudicating upon the rights of par' 
ies, before me, and incases within the jurisdiction of the court, 
to examine Avhether the law of Congress, under which cither 
party may claim or defend, is in pursuance of, conformable to, 
and within, the express or implied powers granted. After thus 
presenting a general outline of the delegated powers, and the 
restrictious and explanations of them, with those declared to be 
reserved and secured to the States and people, I cume to the 
examlnatioa of the asts of Congress, upon the rights of the 
parties in the cise bafore us. It is a new phiS3, and, I am per- 
suaded, a rare instance of the claim and exercise of such power, 
as being within those expressed or implied. A part of these 
acts I am unable to distinguish away, but feel compelled to 
understand the intention of the makers as asserting the power 
and right to legislate upon that class of contracts, &c., debts, 
judgments and executions, which respect to bounty land claims, 
and bounty lands after patent issued ; and under the best and 
soundest view 1 am able to take of the coustitution, its objects 
and intent, I am constrained to say, that the subject matter of 
these provisions is not included in, or contemplated, or intended 
to be within, the express or implied powers. Congress,! con- 
ceive, has no power to legislate upon the subject of contracts, 
rights, property, real or personal, laws of descent or distribution, 
the domestic relations, or intercourse of the citizens in their 

318 OTTAWA, 

Rose V. Buckland, and Whittemore v. Bucklaud. 

social or bu-'iness relations ; nor to repeal, alter, or change the 
principles of the common law, in its most comprehensive sense, 
as including the commercial, ecclesiastical, and civil law, as it 
respects their relation to these transactions, relations and prop- 
erty, or their appropriate remedies. Commonwealth v. Murray, 
4 Binn. R. 495, per Breckinridge, J. 

Congress has the power to sell or dispose of the public lands, 
and may pass such laws and make such rules and regulations as 
are found necessary and are deemed judicious to accomplish this 
object, and to secure the title to the purchaser or donee. But 
the contract, sale, or conveyance of the land, when made, is 
interpreted in its terms, and its obligations ascertained by the 
rules and principles of the general or common law of the place 
of the contract, or the situs of the property, as would be done 
on a similar contract between private persons. 3 Story on 
Const. 200, Sec. 1324 ; United States ». Barker, 12 Wheat. R. 
559 ; Sergeant's Const. Law 290. 

Congress may provide, as in these acts, that they will recog- 
nize no purchaser or assignee of an equitable claim for bounty 
land, nor the rights of any save the donee or his heirs, &c. , but 
will issue the patent to him or them alone. But when they 
undertake to go a step beyond this, and not only refuse to 
recognize such purchase or assignment as giving any right to 
demand the land or patent , but also to provide and declare 
such contract, purchase, assignment, and all agreements 
for such equity or land void as between the parties to it, 
although such argreement is lawful, valid, binding, and enforcible 
by the laws of the State where it is made or the land lies, as 
between the parties to it, I am constrained to regard it as an 
unauthorized and unconstitutional invasion of State sovereignty, 
and such acts are null and void. Under the laws of Illinois 
this contract for an equitable claim on the United States for a 
quarter section of bounty land was lawful. When made between 
parties capable of contracting, for a valuable considerati'^n, and 
without fraud, it is capable of being enforced by specific con- 
veyance, or damages may be recovered for its breach. I am 
not advised that it was void by the laws of N. Hampshire, 
Avherc made, and it may be enforced as made for land, or an 
equitable interest in the land, within the jurisdiction of this 
State. A power in a landholder — and it is in such light as a 
trustee, that I regard the United States in relation to the power 
to sell and dispose of this land under the constitution — to exempt 
the land on sale or donation from the general or special authori- 
ty and jurisdiction of the laws of the State is not recognized, 
conceded, or compatible with political sovereignty. Nor can it 
find any sanction or place in the constitution of the United 

JUNE TEEM, 1856. 319 

Kose V. Buckland, and Whittemore v. Buckland. 

States. Neither is a power to make a particular disposition of 
it by entailment, or will, any exception to the general rule It 
is not an incident to proprietorship, but must depend upon the 
local institutions and laws. As well might Congress, by virtue 
of its ownership and power to sell and dispose of it, under the 
C3nstitution, change, alter, or amend the law of descents, testa- 
ments, and intestacies and distributions, and the settlement of 
estates so far as subjectiog lands to the payment of debts is 
concerned, and the law of judgment and other liens upon and 
their sale for debts of any description, as to alter, amend or 
change the laws of Illinois, under which this contract may be 
enforced, or under which plaintiff might have satisfaction of 
damages for its breach, or other creditor, prior to patent, have 
the same for his debt by a sale of this land on mortgage or 
execution. Nearly the whole domain of Illinois has been 
originally derived from the same original ownership ; some 
States, and many territories yet to become States, entirely so. 
If Congress has this power over the contracts, &c., and all 
rights relating to the land by virtue of that ownership and the 
power of its disposition under the constitution, I know of no 
legitimate argument that would limit or prevent their moulding 
and controlling the institutions and laws of the States for ages, 
and that by laws regulating the powers and rights of all owners 
of it, and regulating their duties and liabilities. 

When we have acquiesced in the power of Congress to secure 
the land and the title to the purchaser, we have reached the 
boundary of political and proprietary jurisdiction and right. 
The doctrine laid down in Wilcox v. Jackson, 13 Pet. R. 498, 
in relation to'the evidence, of title and the power of the State 
to establish the character and kind of evidence, reached that 
boundary. But the court distinctly recognize the politcal right 
and power ot the State to legislate as she deems proper in rela- 
tion to the property of the citizens, and this may well include 
their contracts. The first acts of the general government, in 
usurpation of powers acquiesced in nuder a law of necessity, 
(see Federalist, Nos. 38, 42, 43 ; 3 Story Com. Const. 186-7,) 
but the power of sale has been confided since by the constitu- 
tion, that I will snpport ; but I should feel derelect in my duty, if 
I sanction acts that would sweep away the jurisdiction of the 
State to regulate its landed interest and all the contracts and 
remedies of its citizens respecting it, and quietly suffer a cen- 
tralization of this power over both, in the United States. I do 
not pretend that these acts alone would efi'ect so disastrous a 
state of things, but if the power exercised in this instance 
exists, we hold our jurisdiction as a State by the uncertain 

320 OTTAWA, 

Rosa V. Buckland, and Whitteiuore «. Buckland. 

tenure of national discretion. Congress passed laws inflicting 
penalties for trespasses committed upon the public lands, thus 
exercising acts of political sovereignty within the terriorial 
limits of this State, and regulating acts and remedies in relation 
to the property within its jurisdiction. I need not characterize 
these acts, nor examine their claims to constitutional sanction 
after the formation of a State government, but I may be allowed 
to believe that such acts and pretensions by any other land- 
holder, individual or corporate, would have excited attention 
and rebuke. But even admitting this as a necessary rule or 
regulation, for its disposition, without appealing to the laws of 
the State for its protection equally and alike with all other pro- 
prietors, still they may not therefore assume to regulate and 
control it after they have sold it, nor intermeddle with lawful 
contracts between citizens of the State concerning it, nor make 
void all the judgments that are rendered for debts due prior to 
their patent, and entitled by the laws of the State to satisfaction 
by a sale of it, after the title is made. I do not suppose that 
Congress, in these instances, designed to interfere with State 
jurisdiction. But through a high and tender regard to an im- 
provident class of individuals, objects of their bounty, these 
provisions were inserted for their protection and security, as 
well as for protection of the United States, from fraud and 
i)nposition. But no motive, however exalted or commendable, 
will satisfy or palliate the invasion of the State's sovereignty 
and right to regulate the protection and rights of her citizens, 
either in their persons or property. As well might Congress 
declare that lands sold or given, should not descend to an alien 
heir in this State, because it might endanger the peace, safety 
and stability of our institutions, while the laws of the State 
allow such alien to take hy descent. See Justice Johnson 
Arguendo, Ogden v. Saunders, 6 Cond. R. 531 ; Lessee of 
Jackson v. Burns, 3 Binn. R. 84. 

This contract was made on the 25th Nov., 1840. The last 
act of Congress, which revived the former acts, and under which 
this land was obtained, passed in 1842. If the act was allowed 
to be valid as to the character of its provisions, it might still be 
held invalid as to this contract, because it impairs the obliga- 
tion by declaring the whole void, and this retrospectively. 

I know, literally, by the terms of the tenth section of the first 
article, that the prohibition to pass laws impairing the obliga- 
tion of contracts is confined to the States. See 3 Story Com. 
Const., Sec. 1339, p. 212. Satterlee v. Mathewsou, 2 Pet. R. 
416, per Johnson, J. 

The reasoning of Judge Story in 3 Story Cora, on Const. 268, 
Sec. 1393, is altogether applicable to the United States as well 

JUNE TERM, 1856. 321 

Reed v. Bradley et al. 

as to the several States, the principles of our institutions and 
natural justice should shield parties from a wanton des:ruction 
of their contracts and rights where no principles of public 
policy are contravened by them. 

It is with diffidence that I approach a subject so grave, and 
the first of its character I have met with. But I feel sure 
that precedent is not wanting, to show that State courts will 
declare the acts of Congress invalid, when properly presented, 
and essential to the rights of parties before them. See U. 
States V. Lathrop, 17 John. R. 10 ; Sergeant Const. Law 279 to 
290 ; though most of the cases I have examined were cases of 
habeas corpus. 

James H. Reed, Appellant, v. Cyrus P. Bradley et al.. 



"Where a corporation is authorized to execute a mortgage, and the exigency of 
its affairs and its interests demanded tliat one should be made, of which it 
should he the proper judge, it will be sustained. (a) 

The seal of a corporation is prima facie evidence of the assent of the company. 

A mortgagee of a telegraph company who has advanced money in good faith, 
to organize and maintain its business, having taken the management of its 
affairs upon himself, to secure the repayment of his loan, can maintain reple- 
vin for the mortgaged property ; although a circular may have been issued in 
the name of the company, soliciting business,he could only use the franchise 
in the name of the corporation, and such circular would not conclude his right. 

A bill of exceptions, which shows that all the evidence in the case is set forth 
in it, will be sufficient. 

The action below, was repleven. The declaration contains 
one count, charging that the defendants took from the plaintiff 
several articles connected with a telegraph office, and all the 
polls and wires in the county of Cook, and attached to the office, 
known as the Southern Michigan Telegraph Company, in the 
city of Chicago, of which the plaintiff was entitled to the posses- 

To this action the defendants filed two pleas. 1st plea, that 
they did not take the said property. Issue joined thereon. 2nd 
plea, that Bradley was sheriff, and defendant, Norton, was his 
deputy, and are lawfully entitled to the possession of the pro- 
perty, because they seized and held the same under a writ of 
attachment, in favor of Julius G. Lombard against the Southern 
Michigan Telegraph Co., returnable to the Cook county Circuit 
Court, at the November term, 1853 ; and under said writ they, 

(a) Ottawa N. P. B. v Murray 15 m E. 338. 

ILL. REP, — ^xvn. — 20 


Reed v. Bradley et al. 

on the 17th day o£ October, 1853, seized and held said property, 
&c., with usual averment of ownership. To this plea there 
was a replication that plaintiff was entitled to the possession, &c. 
The cause was submitted to the court, Morris, Judge, pre- 
siding, at NoYember term, 1853, who found the issue of the first 
plea for the plaintiff, and on the second for the defendant, and 
ordered a returno of the property, and divided the cost. 

The only error assigned is in these words : "The finding of 
the court, upon the issue presented by the defendants under the 
second amended plea, and avowry, and the judgment therein 
rendered in awarding a return of the property in the declara- 
tion mentioned to the defendants, was against evidence in the 
case, and the law as applicable thereto." 

The taking was admitted on the trial, and the only question 
was, whether, at the time of the taking, the plaintiff was enti- 
tled to the possession of the property. 

The plaintiff claims to have held the property under two cer- 
tain mortgages, executed by the Southern Michigan Telegraph 
Company, on the 5th day of April, and 4th day of August, 1853 . 
to secure certain advances made by him to said company, for 
the purpose of repairing their line and putting it in a working 
condition, and also claimed that he had furnished all the mate- 
rials with which that portion of the line lying within the limits 
of the county of Cook was constructed, and had advanced all 
the money, which had been used for that purpose. And that he 
had, therefore, a clear right to retain the possession thereof 
until such advances were repaid to him. 

The defendants justify the taking by virtue of an attachment 
writ, issued at the instance of a creditor of the Southern Michi- 
gan Telegraph Company, October 15, 1854. 

The first mortgage under which the plaintiff claims, recites 
the condition of the entire line of the company, lying in the 
States of Michigan, Indiana, and Illinois, its want of repair, 
&c. , and the proposal of the plaintiff to advane to the company 
the means necessary for repairing their line, such advance- 
ment not to exceed the sum of $5,000. The said company, in 
consideration of such advances, sold and transferred to said 
plaintiff their entire line or lines of telegraph owned by them, 
and extending from Detroit, in the State of Michigan, to Adrian 
in the same State, and from the city of Monroe to the city of 
Chicago, through portions of the States of Michigan, Indiana 
and Illinois^ together with all the property appertaining thereto. 
And as a further security for the repayment of such advances, 
the plaintiff was auth>:.nzed to take immediate possession of the 
property so transferred, and to have the entire management and 
control of the same, and to apply fcae profits over and above the 

JUNE TERM, 1856. 323 

jReed v. Bradley et al. 

expenses of operating the line, to the satisfaction of the mort- 
gage debt. 

The mortgage also contained the usual power to sell in case 
of default. 

The second mortgage recites the former mortgage, that the 
sum of $5,00u had been duly advanced to the company, and 
that the same had been found insufficient, and provides for the 
further advancement of $2,000, tor the purpose of putting the 
line in a workmg condition. The sum advanced under the 
second mortgage, is to be repaid in one, two and three years 
from the date of the mortgage, with annual interest at tKe rate 
of ten per cent, per annum. This mortgage also provides for a 
sale of the mortgaged property in case of default in either of 
the payments. 

Possession was to accompany the first mortgage, and was ex- 
pressl}^ made a condition upon which the advancement was to 
be made, and the sum advanced was to be repaid in four equal 
annual payments, from the 1st day of May, A. D. 1853. 

The corporate seal of the company was duly attached to each 
of the mortgages, and the signatures of the proper officers were 
duly proved. 

Neither the act of the legislature of Michigan, incorporating 
the company, nor the act referred to in the act of incorporation, 
provides any particular mode in which the deeds of the company 
shall be executed or acknowledged ; and besides, the evidence 
clearly shows that the authority was duly given for the execu- 
tion of the mortgages. 

The witness, George Allen, after proving the execution of the 
mortgages, states that he was employed by Mr. Reed, about the 
1st of March, 1853, to come to Michigan for the purpose of 
taking charge of the property of the company, as the agent of 
Mr. Reed, and to rebuild and repair the line, in case the terms 
proposed by Mr. Reed were acceded to by the company ; that he 
took possession of all the property mentioned in the mortgages, 
as the agent of Mr. Reed under the first mortgages in the course 
of two or three weeks after its execution, and as soon as he 
could leave ; that Mr. Reed had accepted of the mortgages ; and 
that he took possession as the agent of Mr. Reed. He states 
the condition of the line at the time he took possession ; that 
some portion of it had been sold under executions against the 
company ; that the line originally extended from Monroe and 
Detroit by the way of Adrian to Chicago ; and that that portion 
of the line lying within the limits of the county of Cook, had 
been sold under executions against the company and taken 
away ; that Mr. Reed advanced to him under the first mortgage 
$5,000, including wire sent to him by Mr. Reed from Ne\T 

324 OTTAWA, 

Reed v. Bradley et al. 

York, and with this money and wire, he reconstructed and 
repaired the line to a point somewhere between South Bend and 
Laporte, in the State of Indiana, when the second mortgage 
was executed ; that Mr. Reed advanced $2,000, under the second 
mortgage, including wire which he purchased in New York and 
sent to him ; and that with this money, and wire so sent, he 
reconstructed the line from Laporte, Indiana, to or near Chi- 
cago ; that Mr. Reed made other advances to him for the com- 
pany, which were secured by a subsequent mortgage executed 
by the company in April, 1854, with which the whole line was 
entirely completed ; that it was finished by the 17th of Novem- 
ber, 1853 ; that all the materials which that portion of the 
line lying within the limits of the county of Cook, was recon- 
structed, including the property taken by the defendants, were 
either sent by Mr. Reed or purchased wiih money sent by him ; 
that at the time of the taking of this property by the defendants 
he was in possession of it and of all the property of the com- 
pany, as the agent of Mr. Reed, and had been in such posses- 
sion, as the agent of Mr. Reed, from the time he first took pos- 
session, some two or three weeks after the execution of the first 
mortgage ; that the possession of the property had never been 
given to the company, but was retained by him as the agent of 
Mr. Reed, and that from the time when he first took possession, 
until the 14th of November, 1854, he worked and operated the 
line as the agent of Mr. Reed, and charged him with receipts ; 
and that the company never interfered with his management 
and control of the property, as the agent of Mr. Reed ; ana 
being questioned by the court he says : I kept, with Mr. Reed, a 
regular account of the advances made by him, and of the amount 
received in operating the line. In my transaction as the agent 
of Mr. Reed, m opsrating the line, I signed receipts, and exe- 
cuted all papers in his name, and as his agent, audit was known 
by those acquainted with the affairs of the line, that I was in 
possession as his agent. 

In June, 1854, there had been paid to Mr. Reed on the first 
mortgage, from the earnings of the line, $1,818.73, which is 
thereon indorsed, and on the third mortgage $l,174,which is 
also indorsed thereon. Allen states, that he was during this 
time, also, the secretary of the company ; but states as a reason 
why he was appointed secretary of the company, that it was 
supposed he should be better acquainted with its affairs, while 
acting as agent of Mr. Reed. 

The only evidence offered by the defendants was the circular 
issued in the name of the Southern Michigan Telegraph Com- 
pany, dated September 26th, 1853, addressed to the merchants 
and public generally of Chicago. Which announced the com- 

JUNE TERM, 1856. 325 

Reed v. Bradley et al. 

pletion of the line, described the material o£ which it was con- 
structed, and recommending it to the patronage of the public, 
soliciting business. 

HoYNE and Miller, for Appellant. 

Miller and Fowler, and Shumway and Waite, for Appellees. 

ScATES, C. J. The charter of the Southern Michigan Tele- 
graph Company, fully authorizes them, as we think, to make the 
several mortgages relied on by the plaintiff, as showing property 
and a right of possession in him. If the exigency of their 
affairs, and the interests of the company demanded that these 
incumbrances should be made, and of this they must be allowed 
to judge, and not a stranger, we should not feel warranted in 
setting aside a fair contract, with which both parties were con- 
tent, although it be at the instance of a creditor, unless such 
creditor can show that his rights are prejudiced by it. These are 
under the signature of the president and the seal of the com- 
pany regularly made, and the subject matter of them, calculated 
to promote the objects contempla:ed by, and within their char- 
ter, and the interests of the company. The seQlispri?na facie 
evidence of the assent of the company. Lovett v. Steam Saw 
Mill Association etal., 6 Paige R. 54; Johnson v. Bush, 3 
Barb. Ch. R. 207 ; Angell and Ames on Corp., 192, Sec. 6, 194, 
Sec. 7. 

We have heard no solid or valid objection urged against the 
fairness or legality of these mortgages. The plaintiff has insist- 
ed upon his right to retain the possession of the telegraph line, 
with all its fixtures and attachments, under a right of lien in 
the nature of the lien of mechanics, for labor in making or 
repairing articles of personal property, and upon the materials 
they may provide and use for these purposes. (See for this 
principal of law Moore -y. Hitchcock, 4 Wend. R. 292 ; Gregory 
V. Styker, 2 DenioR. 628.) But I am not prepared to admit 
the analogy, or the application of the principle to this case. 
The plaintiff does not present himself in this record as a 
mechanic, but rather as a, capitalist. Rather as investing his 
money in an enterprise of others, taking a mortgage of the prop- 
erty and the management of the expenditure, and the operation 
of the enterprise for a security. Neither does he stand before 
us in the character of a vendor, insisting upon retaining posses- 
sion of the article sold, until paid the price. He is in the atti- 
tude of bailee or mortgagee, and upon that he must stand, and 
defend his rights. In this character he has very clearly shown 
title in himself sufficient to entitle him to recover the articles 

826 OTTAWA, 

Eeed v. Bradley et al. 

replevied, unless defendants can show that the rights of Lom- 
bard, the attaching creditor of the Telegraph Company, is 
injured thereby, or has paramount right to satisfaction out of 
this property, as the property of the company. 

There is nothing shown in the traasaction itself, as between 
the plaintiff and the telegraph company, to set the mortgages 
and arrangements aside. On the contrary it not only appears 
to have been fair, and bonajide, but eminently for the benefit of 
the company, as well as their creditors. When Reed took it, 
the enterprise seems to have proven a failure, either for want of 
sufficient means to develope it, mismanagement, or its intrinsic 
worthlessness. Having furnished the means to repair, rebuild, 
and put it in operation, under his management it had already 
on the day of trial, within about a year, repaid him from 
profits about $3,793.73, which had been indorsed upon the 

The only grounds presented, to impeach this transaction, and 
subject the property to the payment of the company's debts, 
without regard to Reed's rights, are, that it has been held out 
to the public as the property, and in the name of the company, 
in a circular inviting patronage, and that Lombard is a creditor 
of the company. 

Taking all this for truth, and still the rights of Reed are not 
impaired or affected. The simple existence of a debt, does not 
put it out of a debtor's power to sell or incumber his property 
in an ordinary, fair, business way. It must be fraudulent, or 
done to hinder and delay creditors. This does not appear. 
Besides the equity of redemption in the debtor, mortgagors 
may be liable to Lombard's claim. Taking this, might be just 
and right, while it would be iniquitous to take with it, not only 
all that they pledged to Reed for security, but some five thou- 
sand dollars' worth of Reed's money spent in improvments upon 
it. Defendants should have shown that Lombard was a creditor 
by proving a debt from the company to him, in order to put him 
and themselves in a position to question this transactson as be- 
tween the parties. 

How and when was that debt contracted ? Was credit given 
the company on account of the circular ? No such facts are 
shown. See Damon v. Bryant, 2 Pick. R. 413 ; Pierce v. 
Gibson, 2 Carter la. R. 408. 

The use of the name of the company was proper and neces- 
sary in the management of the telegraph line. (a) The company, 
and not Reed, owned the franchise to build and operate the 
line. This franchise had not been forfeited, lost or waived by 
the mortgage arrangement ; nor had Reed any right to exercise 
this franchise in his owe name, but only in the name, and as 

(a) Palmer vs. Forbes, 23 ni. R. 318, 319; BouiTett TS. G. W. E. Co. 25 Id. 35C 
Wilkinson vs. Fiemmiug, 30 Id. 30^ 

JUNE TERM, 1850. 327 

Keed v. Bradley et al, 

assignee, of the company. He was assignee only o£ the property 
with liberty to operate and manage — whi-ch could only be in the 
name of the corporation. This he had a right to use for the 
purposes provided in -the mortgages. We use these arguments 
as illustrations of this case only ; for Reed, in this case did not 
claim, or profess to operate this line in his own name, but under 
the company as mortgagee in possession. We, therefore, pass 
no judgment on his right to exercise the corporate franchises in 
his own name as mortgagee or purchaser. The explanation 
seems full, fair and consistent, why the circular invited public 
patronage in the name of the company. But, at the same time 
the property was, and had been actually in Reed's possession 
under the mortgage, which was notice to all concerned to put 
them upon inquiry. It is true that George Allen was, a por- 
tion of the time, both secretary of the company and agent for 
Reed. No one might know his character either as secretary or 
agent, without inquiry — and by it, they could easily learn that 
he claimed and possessed the property, as agent of Reed. He 
held the secretaryship for the convenience of keeping the mutual 
accounts. His possession should have put Lombard upon inquiry 
into the ownership, before he trusted the company, on the faith 
of the property. Such inquiry would have led him to a true 
knowledge of all the facts. 

In every light in which we have been able to view these facts 
injustice seems to have been done Reed by the finding and judg- 

After hearing a second argument of this cause and careful 
consideration of the bill of exceptions, we deem the same suffi- 
cient to show that all the evidence in the case is set forth in it. 
This is all that is required by Stickney v. Cossell, 1 Gil. R. 420. 
And it is not obnoxious to the objection in Buckmaster -y. Coal, 
12 111. R. 74, of being a mere outline. This bill recites at 
large the evidence of both parties, and concludes that "upon 
the evidence aforesaid" the cause was submitted, and the court 
found the issues. This phraseology necessarily excludes that 
any further, other, or more was before it. 

Judg-ment reversed and cause remanded. 

Judgment reversed. 

328 OTTAWA, 

McAllister v. Smith et al. 

Edward McAllister, Appellant, v. William Smith, et al.. 


Any rate of interest which is authorized by the law of the place where a contract 
is made, or ot the place where it is to be performed or paid, will be recognized 
and enforced in the courts of other governments, whose laws would otherwise 
make such rates of interest usurioiis. 

When a note is made payable in a particular locality, it will be presumed that the 
parties intended to adopt the laws of that locality in reference to the rate of 

A plea which avers that a bill of exchange was drawn to a bank in Illinois.made 
payable in Xew York, with express reference to the laws of ZS^ew York, but 
bearingtwelve per cent, interest.besides the priceof exchange between the two 
places, and was therefore void by the statutes of New York setting them out is 
not an immaterial plea, as sucli a plea, if true, presents a good defence to a 
suit on the bill. 

While the court will not administer Ihe penal exactions of a foreign law by en- 
forcing forfeitures, it will, when a contract is void by the law of the place where 
it is made, hold it to be void here ; although the "same contract, had it been 
made here, would be held valid. 

A notarial certiflcate of protest is not of itself evidence of that fact. 

The law of eAidence of this State willbe enforced when a plea of usury is set up 
as a deleuce, so far as to permit the party pleading it to give testimony in its 

(A party to negotiate paper may impeach it for usury as to witness.) 

The plaintiffs below brouglit this action, -which is assumpsit, 
against the defendant as the acceptor of five several bills of 
exchange. The declaration contains five special counts, and 
the common counts with copies of the bills set out. 

The first count is upon a bill of exchange drawn by McAllis- 
ter & Co., bearing date the 2nd day of September, A. D. 1854, 
upon the defendant below, for the sum of two thousand dollars, 
payable to the order of the drawers, at the Merchants' and 
Drovers' Bank of Illinois, ten days after date, accepted by the 
defendant and indorsed by the drawers to the plaintiffs. 

The second count is upon a bill of exchange, drawn by 
McAllister & Co., bearing date the 5th day of September, 
1854, upon the defendant, for the sum of one thousand dollars, 
payable to the order of the di-awers, at the office of Wadsworth 
and Sheldon, in the city and State of New York, sixty days 
after date, accepted by the defendant, and indorsed by the 
drawers to the plaintifis. 

The third count is upon a bill di'awn by McAllister, bearing 
date the 7th day of September, 1854, upon the defendant, 
for the sum of one thousand dollars, and accepted by the defend- 
ant, payable at the office of Messrs. Wadsworth and Sheldon, 
NeAV York, to the order of the drawers, sixty days after date, 
and indorsed by the drawers to the plaintiffs. 

JUNE TERM, 1856. 329 

Mc AUister v. Smith et al. 

The fourth count is upon a bill of exchange dra^vn by McAl- 
lister & Co., bearing date the 11th day of Septebmer, 1854, 
upon the defendant, for the sum of two thousand dollars, pay- 
able to the order of the drawers, sixty days after date, and 
accepted by the defendant, payable atWadsworth and Sheldon's, 
New York, and indorsed by the drawers to the plaintiffs. 

The fifth count is upon a bill drawn by McAllister & Co., 
bearing date the 18th day of September, 1854, upon the defend- 
ant, for the sum of one thousand dollars, payable to the order 
of, the drawers, sixty days after date, accepted by the defened- 
ant, payable at the office of Wadsworth and Sheldon, New 
York, and indorsed by the drawers to the plaintiffs. 

The common counts are in the usual form. 

The defendant pleaded firstly, the general issue to the whole 

Secondly — To the secnod, third, fourth and fifth counts in 
the declaration, specially, that previous to the making of said 
bills in said counts mentioned, to wit : On the 20th day of 
August, A. D. 1854, at Joliet, in the county of Will, &c., the 
Merchants' and Drovers' Bank of lUionis was a body corporate 
created under the statute of the State of Illinois, entitled " An 
act to establish a general system of banking ;" that said Wm. 
Smith was then and there and still is the president, and the said 
R. Eaton Goodell the cashier thereof. That said bank being- 
such body corporate, and the plaintiffs president and cashier 
thereof, it was, to wit, at Joliet aforesaid, on the day aforesaid, 
corruptly, and contrary to the provisions of the statute of the 
State of New York, hereinafter set forth, agreed by and between 
the said bank, by the said plaintiffs, the agent and officers 
thereof as aforesaid of the one part, and the said McAllister & 
Co., and the said defendant of the other part that the said 
bank should lend and advance to the said McAllister & Co ., 
and to this defendant for the purpose of buying by the parties 
last named a quantity of grass seed, during the then coming 
fall, such sums of money as they, the said parties last named 
should desire, not exceeding the sum of seven thousand dollars, 
in manner following, that is to say : in such sums as should 
from time to time be required by the said McAllister & Co. and 
the said defendant, for the purpose aforesaid ; and should for- 
bear and give day of payment of said sums to be so lent and 
advanced at the said bank as aforesaid, and each and every 
thereof, for the period, to wit, of sixtv days upon each, from 
the time of advancing the same, and the said sums, to be so 
advanced were each to be paid in the city and State of New 
York, reference being had to the laws of said State by said 
parties in the making of such corrupt agreement and that for 

330 OTTAWA, 

McAllister v. Smith et al. 

the forbearing and giving day of payment of the said sums of 
money, so to be advanced as aforesiad by the said bank, the 
said McAllister & Co. and the defendant should give and pay to 
the said bank as interest, at the rate of twelve dollars for a 
hundred, for one year upon all the money to be so advanced, by 
the said bank as aforesaid, besides the difference in exchange 
between Joliet and New York. 

And to secure the repayment of said sums of money so to be 
lent, the said McAllister & Co., should draw and indorse and 
the defendant accept a bill of exchange payable in the city of 
New York, for such an amount as would cover the sum advanced, 
with the interest, at the rate aforesaid, added ; which draft or 
bill, so made, drawn, indorsed and accepted, should be delivered 
to said bank at the time of receiving the money as aforesaid. 

The plea alleges the advancing of the money and giving said 
bills in persuance of the said agreement, and that the whole 
amount of money received did not exceed in all the sum of four 
thousand eight hundred and ninety-five dollars, and that the 
amount agreed to be received as interest for such loan exceeded 
the rate of seven dollars for the loan of one hundred for one 
year. The plea sets out the New York statute, alleges that said 
bills are void by said statute, and the premise concluding with 
a verification, &c. 

The third plea is likewise to the second, third, fourth and 
fifth counts of the declaration, which are framed upon the bills 
payable in New York, and is the same as the foregoing, except 
that the corrupt agreement is alleged to have been made 
between the plaintiffs, of the one part, and McAllister & Co., of 
the other part, to loan by the plaintiff's to McAllister & Co. 
and the defendant, such sums of money, &c., refers to the 
usury laws of New Y^ork, set out in the second plea; and alleges 
that the said money was to be repaid in the city and State of 
New York, and that the said agreement was made by the parties 
thereto with reference, in all respects, to the laws of the said 
State of New York, and that by virtue of said statute the said 
bills were wholly void, concluding with a verification, &c. 

The fourth plea is to the first count of the declaration, which 
is based on the bill payable at the Merchants' and Drovers' 
Bank. It alleges the incorporation of said bank under the gen- 
eral banking law of the State of Illinois, that the plaintiffs were 
and are the president and cashier of said bank, and as its 
officers and agents, made an agreement with McAllister & Co. 
to loan them the sum of nineteen hundred and ninety- one 
dollars and thirty-three cents, and to give a day of payment 
thereof, ten days, and the said McAllister &Co., for such loan 
and forbearance, agreed to pay, and the said bank to receive, 

JUNE TERM, 1856 331 

McAllister v. Smith et al. ■ 

the sum of eight dollars and sixty-seven cents being at the rate 
of twelve per centum per annum and the said McAllister &Co. 
were to make and indorse, and the said defendant to accept, 
said bill of exchange as security for the repayment of said 
sum; that said sum was received and said bill given in pursu- 
ance of said agreement, and that said bill was void by the 
provisions of said statute, concluding with verification, &c. 

The plaintiffs filed replications to said pleas as follows: 

To the general issue added the similiter. 

To the second plea — 1st, denying the usurious agreement. 

To said second plea — secondly, protesting that there was no 
such usurious agreement, &c., and that said bills of exchange in 
second, third, fourth and fifth counts in said declaration were 
not respectively made, accepted and delivered in pursuance of 
such alleged contract as set forth in said plea, nevertheless say 
that such con ract was not made nor were said bills of exchange 
made, accepted, or indorsed, with reference to the laws of New 
York, by the several parties in the making of said contracts or 
writings, or in the accepting, indorsing, or delivering of said 
several bills of exchange in said plea mentioned, concluding to 
the country, &c. 

And to said second plea — thirdly, protesting, &c., and , deny- 
ing that the bills mentioned were drawn, accepted, indorsed; 
delivered or given in pursuance of such usurious agreement, or 
for such usurious considerations, concluding to the country. 

And to said second plea — fourthly, protesting, &c, and 
alleging that said bills of exchange were severally drawn, 
signed, accepted, indorsed, delivered and given in the State of 
Illinois, viz. : in the county of Will aforesaid, and that all and 
each of the parties to said several bills of exchange, and each 
of the parties to this Luit were then and there residents and 
citizens of the State of Illinois, and transacting business in said 
State of Illinois, and that in drawing, accepting, indorsing and 
delivering said several bills of exchange, reference was had by 
all the parties thereto, to the laws of the State of Illinois, and 
not to the laws of the State of New York, all of which said 
plaintiffs are ready to verify, wherefore, &c. 

The same replications were filed to the third plea. 

To the fourth plea the plaintiffs replied — 

1st Denying the illegal agreement, and concluding to the 

2nd. Denying that the bill of exchange, mentioned in the 
first count of the declaration, was drawn, accepted, indorsed, 
delivered or received in pursuance of any illegal agreement, 
and concluding to the country. 

The defendant's counsel entered a motion to strike out the 

332 OTTAWA, 

McAltisterc. Smith et al. 

fifth and ninth replications of the plaintiffs, (which are those 
alleging that the parties contracted with reference to the laws 
of Illinios, and not those of New York, and concluding with a 
verification,) which motion the court overruled and the defend- 
ant excepted. 

The defendant filed rejoinders to the plaintiffs' replication 
thus : to the fifth replication alleges that reference was not had 
by the said parties, or any thereof, to the laws of the State of 
Illinois in either the drawing, the indorsing, the delivery, or 
receiving said several bills of exchange, or either of them, in 
said plea mentioned in manner and form, &c., but the same 
were drawn, made, indorsed, accepted, delivered and received 
by and between said parties with reference to the laws of the 
said State of New York, concluding to the country, &c. 

To the ninth replication, which was the same as the fifth, the 
same rejoinder as above. 

To the replications concluding to the country, the defendant 
added a similiter. 

The cause was tried before the Hon. S. W. Rai^dall, Circuit 
Judge, and a jury, at the December term, 1855, of the Will 
County Circuit Court. 

On the trial the plaintiffs read in evidence to the jury five 
bills of exchange, drawn by McAllister & Co., and accepted by 
E. McAllister, three of which were accepted, payable at the 
office of Wadsworth and Sheldon, New York. 

The plaintiffs then offered in evidence four notarial certifi- 
cates purporting to be made by J. C. Ambler, notary public, 
New York, and which were in the usual form, having a seal 
attached, and one of which certificates was attached to each of 
fiaid bills. The defendant objected to the same being read as 
evidence. The court overruled the objection and said papers 
were read in evidence, and the defendant then and there 

The plaintiffs rested their case. 

The defendant then called Archibald McAllister, and said 
Archibald McAllister, upon the request of the plaintiffs below, 
was first sworn on his voire dire and testified as follows: "I 
am a member of the firm of McAllister & Co., (the bills of 
exchange were then shown to him,) lam one of the drawers 
and indorsers of these bills. The name of McAllister & Co. 
was signed by me." The plaintiffs then objected to the witness 
testifying in this suit. The said witness was then interrogated 
by the counsel for the defendant and testified as follows: "I 
have a release, which was executed and delivered to me by the 
defendant." The defendant's counsel then read said release, 
which was produced by the witness. 

JUNE TERM, 1856. 33S 

McAllister v. Smith et al. 

The defendant's counsel then made a statement as follows : 
The defendant offers this witness to prove that the bills of 
exchange, given in evidence, were made with reference to the 
laws of New York, and that they were drawn in pursuance of 
a contract made with the Merchants' and Drovers' Bank, for 
the loan of money, by the said bank, to the defendant and 
McAllister & Co., at twelve per cent, per annum, payable in the 
city of New York, and as security for such loan, and to prove 
the facts set out in defendant's pleas. The court excluded said 
witness, sustaining the objection made by the plaintiffs. 

The defendant gave evidence in the cause, tending to prove 
the issues on his part, and his counsel offered the defendant as 
a witness, to which the plaintiffs objected, and the court decided 
that the defendant was not a competent witness, and refused to 
permit him to testify in the cause, to which ruling the defend- 
ant's counsel excepted. 

The defendant read in evidence an exemplified copy of so 
much of the laws of New York, as is material to this case. 

After the evidence was closed upon said trial, and before the 
case was submitted to the jury, the court, without any motion 
from either party, ordered and directed that the said second 
and third pleas and replications be stricken out as presenting 
immaterial issues in the cause, and they were accordingly 
stricken out, and the defendant then and there excepted. 

Sidney Smith and W. K. McAllister, for Appellant. 

T. L. Dickey, and Glover and Cook, for Appellees. 

ScATES, C. J. The correctness of the order, striking the 
second and third pleas from the files for immateriality, depends 
upon the proper application of the principles of the law, which 
entered into and became part of the contract, within the intent 
and meaning of the parties. For the lex loci contractus and 
the lex loci contractus ret sitx, when, respectively applicable, 
enter into and from part of every civil contract, respecting 
rights of property, in things, and choses in action, and so of 
lex domicilie^ respecting mere personal contracts, such as mar 
riages, &c. This is the general rule, and apparently of great 
simplicity in the abstract. Its application however, under cer- 
tain states of facts and circumstances, becomes exceedingly dif- 
ficult, and is left inextricably confused, by the authorities. 

The rule, when properly understood, has its apparent substitu- 
tions as well as exceptions. The case before us, as made by the 
pleas, is an instance of the former. The contracts were made 
iu this State, and the laws of this State would, had the parties 

334 OTTAWA, 

McAllister v. Smith et al. 

been silent, have become part of the contracts for the construc- 
tion and meaning of the parties, in ascertaining and fixing their 
mutual rights and obligations. But parties may substitute the 
laws of another place or country, than that where the contract 
is entered into, both, in relation to the legality and extent of 
the original obligation, and in relation to the respective rights 
of the parties, for a breach or violation of its terms. This I 
call a substitution of the laws of another place or government, 
for those of the place of entering into the contract, and which 
is noted by the authorities as an exception to the general rule. 
This is allowed in all civilized countries, and recognized as part 
of the jus geniiutn, or law of nations, respecting private and 
personal rights, and in all cases, where the subject matter of the 
contract is not maluryi in se, immoral, or contrary to the local 
policy, or dangerous to the peace and good order of the partic- 
ular communtiy, in which it is sought to be enforced. When 
parties seek to enforce such obligations, in the courts of the 
country, whose laws have been adopted as those of the contract, 
it presents only an ordinary case of jurisdiction to the court, 
over a contract made under the same laws of the foruTn, and by 
parties within its jurisdiction. But when the enforcement of the 
contract is sougtt in the courts of a country, governed by a dif- 
ferent rule than the local or adopted law of that contract, the 
law governing it has no force or obligation ex propria vigore, in 
thsit forum, but ex comitate, under the general public law, the 
court will enforce it, giving extra territorial effect, to the laws 
of another government, where it is not dangerous, inconvenient, 
immoral, nor contrary to the public policy of the local government. 
(a) Where the legislature does not define and prescribe the extent 
of this comity, it must be declared by the courts in each case, gov- 
erned by precedents, under the general public law. 

On examining these, we find numberless cases, with great uni- 
formity, sanctioning the enforcement of contracts made under 
and sanctioned by the laws of another State, which are not 
allowed by the laws of the State where suit is brought, or where 
a different rule prevails. 

Thus we find the marriage contract, legally solemnized or 
dissolved, under one jurisdiction, respected and enforced in 
another, under whose laws neither the obligation, nor its 
rescission would have been allowed. And so of the sale 
of lottery tickets and conduct of lotteries. So it is in relation 
10 express or implied contract for interest on money. Any 
rate per cent, sanctioned by the laws of the place where the 
contract is made, or by the substituted laws of the place where 
It is to be performed, or paid, will be recognized and enforced 
in the courts of other governments, whose laws would make 

(a) Adams vs. Eobertson 37 Ul R. 45 

JUNE TERM, 1856, 835 

McAllister v. Smith et al. 

such rate usurious. But there is a jealous vigilance of the 
courts to detect evasions of the usury laws, and "when discove- 
ered, courts will withhold any aid to those who make foreign 
contracts a pretence for exacting usury at home. 

The following authorities fully sustain the principles I have 
laid ^own. Story Coiifl. Laws, Sees. 241 to 246, 280 to 282, 
299, 304, note 1, 304a, 305, 311a and note, 312 ; 2 Parson on 
Cent. 94, Sec. 5 ; 2 Kent Com. 457 to 461 and notes ; Byles on 
Bills (marg.) 314 to 318 ; Andrews v. Herriott, 4 Cow. R. 510 
and note (a), which contains a good summary on this subject. 
Sherman et al. v. Gassett et al., 4 Gil. R. 523 ; Robinson v. 
Bland, 2 Burr R. 1077 ; Van Schaick v. Edwards, 2 John. 
Cas. 355 ; Thompson v. Ketchum, 4 John. R. 287 ; S. C. 8 John. 
R. 192: Fanning v. Consequa, 17 John. R. 516; Sherril -y. 
Hopkins, 1 Cow. R. 105 ; Commonwealth of Kentucky v. Bass- 
ford, 6 Hill 528 : Jacks v. Nichols, 1 Seld. R. 183 ; Cox and 
Dick 1). United States, 6 Pet. R. 198 ; Andrews v. Pond et al., 
13 Pet. R. 77 ; Eeimsdyk v. Kane et al., 1 Gallis C. C. R. 374 ; 
Harman v. Harman, 1 Baldw. C. C. R. 130 ; Bainbridge & Co. 
V. Willcocks id., 537 ; Pecks et al. v. Mayo Follett et al., 14 
Vermt. 36. 

In Pecks et al. v. Mayo Follett et al., the contract fixed a 
time and place in Albany, Ncav York, for the payment of the 
note made in Canada, but no rate of interest was specified. 
The Court assumed or presumed from the place of payment that 
the parties intended to adopt the laws of New York, in refer- 
ence to the rate of interest, and accordingly gave seven per 
cent. And this rule seems to have received the common sanc- 
tion of American and English courts. Sec. 2 Kent Com. 460, 
461 and notes. I do not regard the case of Depan v. Hum- 
phreys, 20 Mast. La. R. 1, as in conflict with the authorities, 
but sanctioning fully the right of the parties to fix upon the 
higher rate of interest, where the contract is made in one, and 
to be executed or paid in another State. 

The case before us is precisely like the case in Vermont, in 
reference to interest, and what laws should govern the contract, 
except that there the facts were found, here they are averred by 
the pleas, which also insist, that the interest taken was usurious, 
and therefore, the statute of New York makes void the contract. 
Willi the consequenoes we have nothing more to do than to 
declare the effect of the law, upon the contract, when it is 
admissible to administer its provisions in our courts. This 
court has properly declared, it would not administer the mere 
penal sanctions of a foreign law by forfeitures. 4 Gil. R. 523. 
But when by those laws the centract itself is void there, it is 
void here and everywhere, and this court will not enforce here, 

336 OTTAWA, 

McAllister v. Smith et al. 

even though it might have been valid if made under our law. This 
principle is, I believe, without exception. Such is the case pre- 
sented by the pleas, which presented a good defence to the bills 
of exchange, if true, and the plaintiff should have been allowed 
to ma^ke and insist upon his defence under them. The, court 
erred in striking them from the files, as immaterial. 

The notarial certificate of protest is not evidence of that fact, 
as was ruled in Bond «. Bragg et al., ante, p. 69, and Kaskaskie 
Bridge Co. v. Shannon et al., 1 Gil. R. 15, in relation to inland 

In revising the ruling of the court below, in excluding McAl- 
lister, the drawer and accepter, for incompetency, we must keep 
in mind that there is a distinction between the law of the con- 
tract and the law of the forum. The former will be enforced in 
our courts as entering into and forming part of the contract of 
the parties, with the exception that if those laws operate crimi- 
nally or penally upon the parties, our courts are under no comity 
to enforce them in this respect. Sherman et al. , t). Gassett etal., 
4 Gil. R. 523. But where the law makes the contract void there, 
it will in like manner make it void here. But in administering 
this measure of relief, we do it through our own forms of action, 
according to our own rules of evidence, and pursuant to our own 
rules of practice. By these must the disclosure of the fact of 
usury be made and the defence sustained. 

Our law has ever condemned usurious interest. It does not, 
however, avoid the contract, but forfeits three-fold the amount 
of usurious interest. Still, this forfeiture is inapplicable to a 
contract made under and governed by the laws of another State. 
If, however, we do not, in the true spirit of the law's repugnance 
to usury, apply the rule laid down for discovery of its own vio- 
lations, to the discovery of like violations of the usury laws of 
other States, when sought to be enforced in our coui'ts, we shall 
be left without any rule especially applicable to this class of 
cases, not equally applicable to all. 

My present impressions are, that the witness is expressly made 
competent by the seventh section of chapter 54, Rev. Stat. 45, 
p. 295. Its language is broad and general, embracing the real 
actors in the usurious transaction, wita a view to a full disclo- 
sure, whenever the fact of usury is put in issue by the pleadings. 
The tenor of the act does not confine the rule given, to violations 
of our own laws, but enlarges it to " the fact of usury" being 
•' put in issue " " by the pleadings." Foreign usurers shall find 
no greater facilities for concealment of their practices, than 
domestic ones, if resort be had to our courts for remedies, to 
extort the excess. I understand the rule given there, as a gen- 
eral one for the detection of the fact, by the oath of the debtor, 

JUNE TERM, 1586. 337 

McAllister v. Smith et al. 

upon whom the usury has been practiced without regard to the 
time, place, or laws violated by it, restricted only by the fact, 
that the creditor be still living, and who also may be heard on 
oath as a witness to this fact. 

It is further noticeable, in confirmation of this veiw of our 
own statute, that different courts in the different States have 
pressed the policy of the usury laws as proper exceptions, to the 
rule laid down by Lord Mansfield in "Walton t;. Shelley, 1 Term 
R. 298, even should the rule be adopted. Taylor v. Beck, 3 
Rand. R. 324 ; Stump v. Napier, 2 Yerg. R. 37. 

I must regard that policy of the law for detection and pre- 
vention of usury, introduced by recent statute regulation, as para- 
mount to the supposed policy of protecting negotiable paper, 
by denying the competency of the maker or indorser, to impeach 
the consideration or validity of notes singed by him. And this 
brings me to the consideration of the general rule, without 
respect to the statute rule. 

The rule was laid down in Walton v- Shelly, generally, 
excluding as incompetent any original party to any contract, 
which he had signed to impeach its validity. The general prop- 
osition was denied in Bent v. Baker, 3 Term R. 27, by Lord 
Kenyon ; and Mr. J. Butler, who concurred in laying down the 
rule, qualified and confined it in this case to negotiable instru- 
ments. Afterwards, in 1798, the case was expressly overruled 
and denied to be law, by the court of King's Bench in Jordaine 
V. Lashbrook, 7 Term R. 602, in which Mr. J. Lawrence, con- 
curring in overruling Walton v. Shelley, treated usury, gammg 
and infancy, as exceptions, even should the rule be recognized. 
It was expressly so ruled in Smith v. Prager, 7 Term R. 56, in 
a case of usury. But the Supreme Court of the United States. 
in the Bank of the United States v. Dunn, 6 Pet. R. 56, adopt 
the rule in Shelley' case, as applicable to negotiable notes. Al- 
though he remarks of the couit are general, tbe facts of the 
case, in 6 Pet. R. 56, show a proper case for the application of 
the rule in Shelley's case, and upon a further distinction upon 
which some of the States adopt and apply it ; and that is to 
exclude the witness in cases where negotiable instruments have 
been actually negotiated, and are in the hands of botia fiae 
holders, in the due course of trade. See Pennsylvania cases 
cited below. 

Such was the case in 6 Pet. R. 56. So should be understood 
my approval of the rule in Lyonet al. ?). Boilvin, 2 Gill. R. 637, 
where I noted one, but did and coiild not note every exception 
and distinction to it as a general proposition. I intended to 
refer to this case in 6 Pet. R. 51, 57, but it was printed as the 
9 Pet. by mistake. There is some reason, justicd and policy 
ILL. REP. — ^xvn.— 21 

338 OTTAWA, 

McAllister «. Smith et al. 

support of tlie rule excluding tlie maker or indorser of negotia- 
ble paper, when he comes to impeach it, after negotiation, in the 
hands of the innocent purchaser ; but this reason will not apply 
to protect the original parties, while it remains in their hands, 
or is sued on merely for their use and benefit. 

There are many and irreconcilable decisions in the different 
States. Most of the courts, if not all, have adopted the rule 
with qualifications, in Bent v. Baker, confirming it to negotiable 
instruments ; and others alone, to those actually and bona fide 
negotiated. See. 1 Grenl. Ev. , Sees. 383, 384, and note 1, of 
last section ; 6 Ohio R. 246 ; 14 Ohio R. 487 ; 17 John. R. 176 ; 
11 Pick. R. 416 ; 1 Metcalf R. 416 ; 2 Dallas R. 196 ; 2 Binney 
R. 165 ; 4 Serg. & Rawl. R. 397^ The Pennsylvania rule con- 
fines it to negotiated instruments, Avhich were commercially 
negotiable ; and so I might understand the rule in Masschusetts 
from the cases of Churchill -«. Suter, 4 Mass. R. 162 ; and Fox 
et al., admrs., -u. Whitney, admr., 16 Mass. R. 120. 

On the contrary rule, I have referred to 3 Rand. R. 316, and 
would add 3 Grattan R. 90, which appears to be a naked judg- 
ment the other way. Connecticut repudiates the rule. 1 Conn. 
R. 265. New Jersey— 2 Harrison R. 194. 

New York admits the competency of the witness, overruling 
W^inton v. Saidler, 3 John. Cas. 185, by Stafford y. Rice. 5 
Cowen R. 23, [see id. 153 ; 3 Wend. R. 416 ] and they hold 
expressly, that the maker is competent to impeach it for usury. 
Tuthill X. Davis, 20 John. R. 285 ; Bank of Utica «. Hillard, 
5 Cow. R, 153 ; Truscott v, Davis et al., 4 Barb. S. C. R. 495. 
The authorities arc to numerous to pursue them further. I 
have presented enough to show and sustain the exceptions and 
distinctions taken, and, I think, to sustain the rule adopted by 
this court, as embracing all that is demanded by public policy in 
maintenance of commercial credit ; and yet, without trenching 
upon that other rule of public policy, adopted by positive legis- 
lation, to detect and prevent usury, and a similar one to avoid 
gaming contracts, in the hands of assignees, and -judgments and 
conveyances given in violation of the act. Rev. Stat. 1845. p. 
263, Cap. 46. There being a release of plantiff here, as accep- 
tor, to the witness as drawer, we are of opinion he Avas com- 
petent while the security remained in the hands of the orignal 
party, to prove the fact of usury, independent of the provisions 
of the statute, (a) 

Judgment reversed aud cause remanded. 

Judgment reversed. 

(a) Not competent to t prove foilure of consirteration, Walter vs. Smith, 23 El. E. 
=346, 342. 

JUNE TERM, 1855. 339 

Welsh et al. v. The People. 

Jaji33 Welsh et al.. Plaintiffs in Error, v. The People. 

If the owner of goods, alleged to have been stolen, voluntarily parts with the 
possession and title, then neither the taking or conversion is felonious. But if 
he parts with the possession,expectuig that the identical thing will be returned, 
or that it shall be disposed of on his account, or in a particular way, then the 
tiling may be feloniously converted, and the bailee be guilty of a larceny. (a) 

The question in such. case is, did the owner roluntat'ily part with the legal title 
to the thing, and did it become vested in the accused ? 

After the case has been declared closed by both parties, it is discretionary with the 
court, and not assignable for error, whether the case shall be again opened, and 
lurther evidence offered to the jury. 

The defendants were indicted for larceny, tried and con- 
victed, at September term, 1855, before R. S. Wilson, in the 
Recorder's Court of the citj of Chicago. Thej were sentenced 
to three years' confinement in the penitentiary. The accused 
were practising upon Hall, what is known as the ball and safe 
game, and borrowed of him the money, to wager. Hall was the 
principal witness on the trial. 

M. T. Burgess, for Plaintiffs iu Error. 

W. H. L. Wallace, District Attorney, for the People. 

Caton, J. The question now again presented, of the right 
of the court ^^efore which this conviction took place, to try the 
prisoners, was carefully considered and decided in the case of 
Ex parte Welsh, ante, 161, and we do not think it necessary 
again to discuss the subject. 

Where, as in this case, the alleged larceny is perpetrated by 
obtaining the possession of the goods by the voluntary act of the 
owner, under the influence of false pretences and fraud, when 
the cases are carefully examined and well understood, there is 
no real difficulty in deducing the correct rule, by which to de- 
termine, whether the act was a larceny and felonious, or a mere 
cheat and a swindle. The rule is plainly this : if the owner of 
the goods alleged to have been stolen, parts with both the pos- 
session and the title to the goods to the alleged thief, then 
neither the taking or the conversion is felonious. It can but 
amount to a fraud. It is obtaining goods under false pretences. 
If, however, the owner parts with the possession voluntarily, but 
does not part with the title, expecting and intending that the 
same thing shall be returned to him, or that it shall be disposed 
of on his account, or in a particular way as directed or agreed 

(a) Stinson vs People. 43 IU. E. 397. 

340 OTTAWA, 

Welsh etal. v. The People. 

upon, for his benefit, then the goods may be feloniously converted 
by the bailee, so as to relate back and make the taking and con- 
version a larceny. The pointed inquiry in such a case must 
always arise, did the owner part vfith the title to the thing, and 
was the legal title vested in the prisoner ? If so, he was not 
gdlty of a larceny. This distinction has not,' in all cases, where 
the question has arisen for adjudication been clearly pointed out. 
The question has been sometimes stated in more general terms, 
as, did the prisoner obtain the goods with a felonious intent, or 
feloniously ? If so, he is guilty of larceny. In this general ex- 
pression the distinction, however, is still preserved ; for if the 
title was obtained with the possession, the taking and conversion 
could not be felonious, although fraudulent and with the design 
to cheat the former owner out of them. Hence, however, has 
arisen much of the apparent confusion on this subject. 

A critical examination of the instructions given and refused by 
the ijourt, is necessary to determine whether the law as thus set- 
tled was violated. The first instruction asked for the prisoner, 
was as follows : " The jury are instructed that if they believe 
from the evidence that the money in the indictment mentioned 
was loaned by the witness. Hall, to the defendant Kinnej, for 
the purpose of enabling Kinney to bet with Welsh, then such 
taking of said money and carrying it away does not amount to 
larceny and the jury should acquit the defendants, even though 
sach loan of the money was obtained by false and fraudulent 
pretences, and with the design to cheat and defraud the said 
Hall out of the same. " This instruction the court refused to 
give without a qualification which will be subsequently noticed. 
Does the instruction as drawn present the law of the case prop- 
erly? Clearly not. It assumes, what is expressed in more 
distinct terms in the fourth instruction, which was refused. That 
instruction is this : " that although larceny may be committed 
by stealing or otherwise converting to the use of the borrower, 
a chattel, which has been loaned to him, yet such is not the case 
when the property loaned is money. " This assumes, that under 
no circumstances can money be loaned without the absolute legal 
title passing to the borrower. This certainly is not the law. 
Money as well as chattels, maybe loaned for a specific purpose, 
and to be returned in the same identical pieces. Money may be, 
and frequently is, loaned for the purpose of making a formal ten- 
der, where there is no expectation of its being accepted, and 
where it is agreed, that in case unexpectedly the party should 
offer to accept it, the tender shall be withdrawn and the same 
money returned. In such a case, as between the lender and 
borrower at least, the title to the money does not pass, how- 
ever it might be as to the third party who should accept the 

JUNE TERM, 1856. 841 

Welsh et al. v. The People. 

tender, the borrower not having withdrawn it as agreed. And 
so in a thousand other instances money may be loaned for a spe- 
cific purpose, which when the purpose is subserved the indentical 
money is to be returned. In all such cases, the absolute title 
does not pass, but only the right to its temporary use, anymore 
than would the title to a horse or other chattel, which had been 
loaned for a time and then to be returned. The question, 
whether the general or only a special title passes, must always 
be d3termined by the inquiry whether it was the intention of 
the parties that the same indentical thing is to be returned or 
only its equivalent or value, in something else. Nor will the 
legal effect of the transaction be different, although the lender 
be indifferent, whether the same thing be returned or its value 
in some other thing or money. The question is, what was the 
intention of the parties at the time ? — what did they agree to ? 
not what would they have agreed to had something else been 

By the first instruction, the court is asked to tell the jury, that 
if they believe the prosecutor loaned the money to Kinney, to 
be bet with Welsh, there could be no larceny. This was assum- 
ing that the absolute title passed if such a loan was made. Such 
was not necesarily the case. If it was loaned under the abso- 
lute assurance that Kinney must win and that the same money 
should be returned to him, then it was loaned for that specific 
purpose, and he parted with the temporary use of the money 
only, and not with the absolute title. If, however, he loaned it, 
expecting the money might be lost by the bet, and if lost, that 
it should be repaid in other money, then he parted with the ab- 
solute title to the money when he loaned it, and there could be no 
felonious taking, although it was obtained by fraud and deceit. 
The first and fourth instructions were properly refused. 

The second instruction is still more objectionable. It is this : 
"That to constitute the crime of larceny there must be a taking 
of the property against the will of the owner ; therefore, in this 
case, if the taking of the property from Hall, was not against his 
will, the jury should acquit the defendants." It is a well settled 
rule that where a party obtains possession of goods by fraud and 
deceit, not with the intention of returning them, but with the 
design of appropriating them and depriving the owner of them, 
and of all remedy for their loss, and does so appropriate or dis- 
pose of them, that is as much a larceny as if the possession had 
been obtained against the will of the owner. Indeed in many 
adjudged cases, the rule has been enfoi'ced with less restrictions 
than I have here stated, and possibly the true rule may be found 
to be broader that I have stated it. But this is sufficient to 
show that the instruction as asked is not the law. I shall only 

342 OTTAWA, 

Welsh et al. v. The People. 

refer to the familiar instance, of a party hiring a horse, for a 
specified service, with the intention at the time of running away 
■with or selling him, and who executes such intention. I know 
of but one single case in this country or in England, which does 
not hold this to be larceny. The third instruction asked for 
the prisoners, was the same in principle as the first, and was 
obnoxious to the same objection. 

I now come to the instruction given by the court as a qualifi- 
cation to those asked for the prisoners. It is this : "If the jury 
believe from the evidence that all three of the defendants fraud- 
ulently considered too-ether, and agreed to practice a fraud on 
the witness, Hall, to induce him to deliver his money to the de- 
fendant, Kinney, for the purpose of his( Kinney's) making a bet 
with the defendant, Welsh, with the intent to feloniously take 
and appropriate the money of Hall, to the joint use of the three 
defendants, and if such delivery to Kinney was procured by 
means of such fraud, and with such intent to feloniously take 
and appropriate, it was no such delivery in law as would legally 
pass the possession of property to him." While this instruction 
is strictly and technically correct, I could wish that the court 
had been more particular to point out to the jury the distinc- 
t'on, which I have attempted to explain, as to whether it was 
the intention of the parties to transfer the absolute title to the 
money by the transaction. The instruction however is nearly in 
the language of many of the I'eported cases. It applies to the 
appropriation of the money of Hall and could have no applica- 
tion, if the money had ceased to be Hall's, and become Kinney's, 
by the loan. Nor could there be the felonious intent required in 
the instruction, if the title to the money had absolutely passed to 
Kinney by the transaction, for Kinney could have no felonious 
intent against Hall, in reference to money, which had become 
his, by the act of delivery to him and the intent with which the 
delivery was made. The instruction is in fact hypothetical, 
and only became operative in case the money still continued 
Hall's. I repeat a regret that the ci 5 tinction referred to was 
not more clearly pointed out to the jury, and if the evidence 
which is sent up in the record convinced us that the title to the 
money had been, in fact, transferred to Kinney by the loser, we 
might possibly be justified in inferring that the jury were misled 
in some way, as to the principle of law by whicb they should 
have been governed, and grant a new trial. 

The first instruction asked on the part of the prosecution and 
given, is much like the one just considered, which was given bv 
the court, and what has been said of the one applies equally to 
the other. 

The second and last instruction given for the people does 

JUNE TERM, 1856. 343 

Welsli et al. v. The People. 

clearly point out the distinction between a mere temporary loan 
and an absolute transfer of title, and is the only one in the 
whole series, which does, to my mind, present the distinct ques- 
tion upon which I think the whole case properly depended. That 
instruction was right. 

Another objection of a minor character, it may be proper to 
notice. After both parties declared the case closed; and the 
case had been opened to the jury by the people's counsel, they 
were permitted to call and examine another witness in the cause. 
It is enough to say that this has been always held a matter of 
discretion with the court, and not assignable for error. With- 
out sucn a discretionary poAver, sometimes the greatest injustice 
would be done. Courts will always exercise this discretion 
with caution, and to promote the ends of justice, and guard 
against suprise to the opposite party. 

The prisoners' counsel asked the prosecutor this question : 
" Have you stated that you expected to receive a part of the 
money if the bet was won? " The court refused to allow this to 
be answered, upon the ground that it was necessary to call the 
attention of the witness to the time, and place, and to whom 
the declaration was made. The restriction ;which the court 
placed upon the examination was proper, as well settled by au- 
thority and sustained by reason. The objection taken was 
properly sustained. An objection was also sustained to this 
question put to the prosecutor : " Did it make any difference to 
you whether you got the identical money which you lent him 
back again, or other money? " Had I been trying the case, I 
think I should have allowed the question to have been answered, 
and yet, strictly, it was not pertinent. The inquiry for the jury 
was, whether the understanding and intention was, that Hall 
should have the same money back, and not whether it was a 
matter of any moment to him, whether he got the same money 
back, or other money as good ? 

On the whole we are of opinion that the judgment must be 
affirmed. • 

Judgmenl affirmed. 

344 OTTAWA, 

Newkirk v. Chapron. 

Adamson B. NEWKrRK, Appellant, r). Rosella Chapron, 



Q^ The act repealing the Municipal Court of tlie city of Chicago was absolute and 

Courts must look to the act repealing, rather than to the repealed act, to fix upon 
the powers and duties which remain in existence. 

A delay, occasioned bv a change of jurisdiction from one tribunal to another, 
does not impair the obligation of contracts. One remedy may be abolished, if 
anotherissubstituted, sothata party may obtain the same substantial aid or 
relief. It is not necessary that there should be, at all times, a person having 
power to issue or execute judicial process. 

A narty having the custody of records does not, from that fact, become author- 
ized to issue process. 

A fee bill, when designed to be used as a levy and sale, must issue as process of, 
and underseal of, the court, and run in the name of the people. The debt and 
damages in a case cannot be included in it ; nor can a clerk issue an execu- 
tion, by which to collect his fees ; norhas an ofiicer of the court control over an 
execution because his fees are included in it. 

A fee bill becomes an execution when issued for the collection of fees for the 
benefit of the otlicers to whom they belong. 

This was an action of ejectment, brouglit in the Cook County 
Court of Common Pleas, by the appellant, against the appellee, 
to recover the possession of a part of the west half of the north- 
east quarter of section eighteen, in township thirty-nine north 
range fourteen east of the third principal meridian. 

The declaration was in the usual form under the statute of 
ejectments, particularly describing the premises, and claiming 
the same in fee. Plea of general issue pleaded, and joinder by 

Upon the trial, the evidence produced by the plaintiff showed 
a connected title, from the United States down to himself, of 
the whole of said west half of the north-east quarter of section 
eighteen aforesaid. 

The defendant admitted possession at the time the declaration 
was served, and set up a title under a sheriff's deed, giving in 
evidence a judgment of the Municipal Court of the city of Chi- 
cago, rendered at the November term of said court, A. D, 1837, 
against the patentee of said land, in favor of one Rober^ Gracia. 

The defendant offered in evidence a paper, purporting to be 
an alias execution upon said judgment, issued out of and under 
the seal of the " Municipal Court of the city of Chicago, " tested 
the 20th day of February, 1839, (five days after the court was 
abolished,) and directed to the sheriff of Cook county, who (as 
appearg by indorsements thereon,) bj his deputy, levied upon 
the said above described land, by virtue of said execution, on 

JUNE TERM, 1856. 345 

Newkirk v. Chapron. 

the 21st day of February, 1839, and on the 25th day of March 
following, sold the same to the plaintiff in the judgment. 

The defendant further offered in evidence a deed, executed by 
the sheriff of Cook county, purporting to convey to the purchaser 
aforesaid, the above described land, in consideration of the sale 
aforesaid ; also deeds purporting to convey to said defendant 
the title of the grantee in said sheriff's deed. 

The defendant further offered in evidence a number of papers, 
purporting to be process'of " the Municipal Court of the city of 
Chicago," dated after the 15th day of Eebmary, A, D. 1839, 
and in no way connected with, nor having any relation to, the 
title set up by said defendant, nor any other title to the said 
land ; to the admission of which said paper, purporting to be an 
alias execution as aforesaid, and said sheriff's deed, purporting 
to convey the land as aforesaid, and all the deeds purporting to 
convey to said defendant the title of the grantee in said sheriff's 
deed as aforesaid, and to the papers purporting to be process of 
the Municipal Court of the city of Chicago, as aforesaid, in 
evidence on the trial of the issue aforesaid, the plaintiff, by his 
counsel, objected. The court below overruled the said several 
objections, and the plaintiff excepted to the several decisions of 
the court thereon. 

The issue being found for the defendant, the plaintiff, by his 
counsel, moved for a new trial, on the grounds that the court 
erred in admitting in evidence the paper purporting to be an 
alias execution, and the deeds so offered by the defendant, and 
that the finding of the com't was against the law and the evidence 
and that it should have been for plaintiff; which motion was 
overruled by the court, and the plaintiff excepted. 

Judgment having been entered for said defendant, the plaintiff 
prayed an appeal to this court. 

This action was tried before J. M. Wilson, Judge, without 
the intervention of a jury. 

The following is a copy of the repealing act : 

' ' An act to repeal part of ' An Act to Incorporate the City of Chicago. ' " 
Sec. 1. £e it enacted hy the People of the state of Illinois, represented in the 
General AssemUy, That so much of an act entitled " An Act to incorporate the 
city of Chicago ," approved March 4th, in the year of our Lord one thousand eight 
hundred and thirty-seven, as establishes a Municipal Court in the said city ot Chi- 
cago, and all matters connected there with, be, and the same is herebv repealed. 
Sec. 2. That all suits or matters, both at law and in equity, now pending and 
undetermined in the said Municipal court , shall be heard, tried and prosecuted to 
final judgment and execution, in the Circuit Court of the county of Cook, in the 
same manner as they would be if the said suits or matters had been originally 
made returnable, or had in the Circuit Court for the said county of Cook ; and all 
recordSjdockets andpapers,belonging to, arising from, or connected with,the said 

)46 OTTAWA, 

Newkii'k v. Chapron. 

Municipal Court, shall, by the clerk of the said Municipal Court, be transferred 
and delivered over to the clerk of the circuit court for the said county ol Cook . 
rrovided, That this section shall not be construed as a release of errors that might 
have been taken advantage of in said Municipal Court ; Prcmclal further, IhsA. it 
shall be no ground of error in or to any judgment heretofore rendered in the said 
Municipal Court, that it does not appear by the record or proceedings that the 
defendant resided in the said countv of Cook. 

Sec. 3. It is hereby made the duty of the highcoustable, elected under the 
provisions of the said act,entitled " An Act to incorporate the city of Chicago,' 
hereby in part repealed. to make returns of all process of summons,executions, 
or of whatever nature, to the said circuit court of the county of Cook ; which said 
circuit court is hereby invested with the same powers to enforce a compliance 
with the law in this behalf, that it would have had if theprocess had been originally 
^ssued from the said circuit court ; and all executions hereafter to be issued upon 
any judgment rendered in the said Municipal Court, shall be directed to the 
sherifl' of Cook connty. 

Sec. 4. That the transcript of any record of the said Municipal Court, of 
any judgment rendered therein, may and shall be furnished by the clerk of the 
circuit court of the said county of Cook ; and any such transcript shall have the 
same force and efl'ect,to all intents and purposes, that the same wouldhavehad, 
if the suit, process or proceeding,whether in law or equity ,had been originally 
commenced or instituted in the said circuit court . 

Sec. 5. That the clerk of the said Municipal Court shall deliver over the 
records,dockets and papers, as provided in the second section of this act within 
six weeks after the passage hereof; Provided, T!\xa.t nothing in this act contained, 
shall be so construed as to prevent the clerk of the said Municipal Court from col. 
lectinghis fees in the manner now provided by law ; and the clerk of the said Mu- 
nicipal Court shall, for that purpose,have free access to the said records,dockets 
and papers, and copies thereof, without costs or charge. 

Sec. 6. That the sheriff of Cook county is hereby authorized to give deeds 
of conveyance for any real estate Avhich may have been sold by the high con- 
stable of the city of Chicago, as fully and efiFectually as he might or could do, i^ 
the said real estate had been sold by the sheriff of said county. 

Sec. 7. That nothing in this act contained shall be construed to prevent 
the high coi.stable of said city of Chicago from proceeding to collect executions 
which have beeu levied. 

Approved February 15, 1S39. 

J. E. Cone, for Appellant. 

G. Manniere and I. N. Arnold, for Appellee. 

ScATES, C. J. The first section of the repealing act, repealed 
so much of the original act " as establishes a municipal court, 
in the said citj of Chicago, and all matters connected there- 
with," absolutely and unqualifiedly. The language is clear, 
plain, and explicit, and cannot be misunderstood. And were 
we to entertain a doubt of the intention to do so, in this act, 

JUNE TERM, 1856. 347 

Ncwkirk v. Cliapron. 

which was to take immediate, full effect, that doubt would be 
removed by the intention disclosed in its subsequent provisions. 
By them, every evil and inconvenience likely to arise, or be pro- 
duced, by the abrogation of the court Avere anticipated, and 
remedied, as far as provision was deemed necessary. Thus 
clearly^is the legislative intent of an immediate and complete 
abolition of the court, with all its incidents, manifested by the 
re-enactment and substitution of such provisions as vvere deemed 
essential and adequate to obviate any injury, delay, inconven- 
ience or deprivation of any right, of any person, dependent 
upon or connected with that court. 

We cannot interpret these provisions, as manifesting an inten- 
lion to limit or modify the system or powers in relation to the 
fact, or extent of the repeal, or abolition of the court ; but as a 
new grant of powers, to obviate any inconvenience or injury 
from it. And in this light, we must look to the provisions of 
the repealing, and not the repealed act, to ascertain, and fix 
upon the powers, and duties which remain in existence. One 
misapprehension of counsel, I conceive has arisen from this 
source. Because the repealing act, granted certain powers to 
persons engaged in the execution of the system abolished, they 
have treated it as a partial or modified repeal, and still look to 
the provisions of the repealed law, by constructing implication, 
as still in operative force, in a much larger sense, than can be 
legitimately inferred from the provisions of the new grant. 

A liberal and sound rule of construction of statutes, as well 
as contracts, authorizes, in ascertaining the true intention which 
is 10 prevail, a general view to be taken of the situation of the 
parties, and of the subject matter of the provision. And under 
a full view of these, we are authorized to reject a conclusion 
manifestly at war with the interest involved, and subversive of 
the general and true intent indicated by the language used, the 
situation of the parties, and the condition of the subject ma-tter. 

Viewing the subject matter of this act — the abolition of the 
municipal court — in connection with the situation of suitors, and 
judgment creditors before it, whose remedies are transferred, to 
be prosecuted before, and administered by, another forum, with 
circuit court, audit evidently may delay temporarily a hearing 
to the former, and an execution to the latter. The former, with 
a standing in the court of many terms a year, are transferred to 
a court of two terms annually ; the latter may not sue out final 
process, until the delivery of the records over, which may not 
be coerced under forty-two days. 

This latter, it is contended, would be a violation of the con- 
stitutional right of the judgment creditors in the municipal 

348 OTTAWA, 

Newkirk u. Chapron. 

court, wlio, it is claimed, are entitled to a speedy remedy, for 
the enforcement of their contracts and obligations. 

Although the subject is not new, it is, to me at least, a new 
application of the provisions of the constitutions. 

They have totally abnegated all power in State legislation to 
impair the obligation of contracts, and this may well extend, by 
implication, to the national legislature. 

Courts and commentators have argued, and forcibly too — though 
I know of no decision, because no such case has transpired — that 
a deprivation, by an act of the legislature, of all remedy, and 
such modification of the remedy in particular cases, as deprived 
the suitor of the benefit of his contract, would be unconstitu- 
tional. 3 Story Com. Const. 245 to 251 ; Odgen'?). Saunders, 
12 Wheat. R. 284, et 5e5'.;Bronson v. Kinsie ei al., 1 How. U. 
S. R. 311 ; McCracken v. Hay ward, 2 How. U. S. R. 608 ; 
Jackson^. How, 19 John. R. 82, 83. 

But we need not anticipate a case of this character. It is 
not before us in this record. The remedy is not denied, or 
repealed ; it is simply transferred to another, and equally compe- 
tent tribunal, for administration in another forum, and for appli- 
cation of it by other officers. 

While the lex loci of the contract is looked to, to interpret, 
explain, and determine the contract, and its obligations, and the 
lex fori, for the application, and enforcement of the proper 
remedy, yet it is said neither becomes a part of the contract 
itself, or of its obligation. 3 Story Com. Const, pp. 247, 248, 
Sees. 1377, 1378. 

A distinction is also taken, and notable, between the obliga- 
tion of the contract, and the proper remedy to enforce it. And 
it would seem, that while the obligation is sacredly held inviola- 
ble, the remedies existing at the making and maturing of the 
contract, may be abolished, if others remain, or are substituted 
for its enforcement. 3 Story Com. Const, p. 250, Sec. 1379 ; 
12 Wheat. R. 284, et scg.,- 14 Wiesit. R. 200, et seq. Sturgis 
v. Crowninshield ; Springfield w. Hampden Cora'rs of Highways, 
6 Pick. R. 508. 

Every change or modification of the existing, is not to be 
treated as an abolition of all remedy. 

The legislature may prescribe the times and mode, in which 
remedies may be pursued, so that some substantial remedy is 
always left in existence. See same authorities referred to above, 
and Mason i\ Haile, 12 Wheat. R. 370. 

It is not true as a proposition of law, or of fact, that there 
must be, ever, and continually in being, officially, a person, with 
power to issue process, and toexecute it. There may be vacan- 

JUNE TERM, 1856. 349 

Newkirk. v. Chapron. 

cies in the office of the Judges, clerks and sheriffs, by deaths, res- 
ignations, removals, or efflux of time, as well as in changes of 
jurisdiction, by abolishing and remodeling judicial or ministerial 
systems. These may occur, where there is no provision in law, 
for the officer to hold over, until a successor is qualified. And 
this would not meet the exigency of a death, removal, or resig- 

The office may be vacant, and no one in being, in whose name 
writs bear test, as well as that from which it issues, or that to 
which it is directed. From any of these, delays in the instant 
prosecution of remedies, may be unavoidable, and yet afford no 
solid ground to allege the want of constitutionality of the law, 
in not preventing such interruption of the redress. 

General bankrupt, insolvent and limitation acts have been 
sustained as constitutional. And yet in the administration of 
them, the obligation of the contract has been more essentially 
affected by this modification and limitation of the remedy, than 
is ever done by the abolition of one for another judicial system 
— one tribunal for another. 

Acts of our own and other States, have been passed, from 
time to time, — altering, changing, modifying, or repealing the 
tules of evidence and the systems of practice, and abolishing 
one and substituting another form of action. And none have 
doubted the constitutional power thus to consult and foster the 
highest supposable public good. Whole systems of pleading 
and practice have been swept away in New York, Missouri and 
Kentucky, and supposed reforms substituted, and I am not aware 
that professional opinion has ever challenged the power. 

There are two notable changes of our own judiciary system, 
by a general repeal of the law under which the circuit courts 
were organized ; when the jurisdiction, causes and general busi- 
ness pending in them were all transferred to other courts, newly 
created and organized afterwards. See Acts 1819, pp. 381, 382, 
Sees. 36, 37, 38 ; Acts 1827, pp. 118, 119 andl21. Sec. 2 ; Acts 
1841, pp. 103, 104, Sec. 2,3, 6, 7, 8, pp. 173, 174. 

Apart from their effect upon judicial commission, I am not 
aware that their constitutionality was ever questioned ; and I 
believe in all respects these acts have been acquiesced in, without 
a single case to test the question of their effect upon suitors' 
rights. Though these acts contained provisions for the state of 
things consequent upon the repeal of the organic law of the 
court, by validating the acts of the clerks thus repealed out of 
office, there seemed never to have been entertained any such 
idea, as that contended for here — that suitors' rights were viola- 
ted by a repeal of one court and a transfer of its jurisdiction 
and business to another, — not even in criminal causes ; or that 

850 OTTAWA, 

Nevvkirk w. Chapron. 

the power and duties of clerks would continue by implication, 
to keep the court ever open for the emanation of process, for 
the preservation of suitors' rights to speedy redress. 

Many such illustrations might be given of similar effects and 
consequences from the operation of different laws, and of the 
constitutionality of which no one ever expressed a doubt. 

There may occur delays of this kind in transferring the 
dockets of justice of the peace, upon deaths, resignations, or 
removals from the county, as is provided for in the Rev. Stat., 
Cap. 59, Sees. 110. 112. 

In Martin -y. Walker, 15 111. E. 377, this court held, that the 
nearest justice to whom the dockets had been transferred might 
issue execution upon the judgments upon the dockets so trans- 
ferred. And this might, in principle, sustain an execution from 
the circuit court in this case, to which, by this act, these 
records and judgments were to be transferred. 

But I may be allowed to repeat, that the doctrine contended 
for here is new to me in its application, and would lead us to 
sanction, as official, the acts of every temporary custodian of 
the records, as clothed b}'' implication, with the power to issue 
processs, even without a court or jurisdiction in whose name to 
test it. Fixing the authority and power of a custodian of the 
records to issue process upon the ground of the suitor's consti 
tutional right to immediate redress when applied for, and we 
should find difficulty in setting ^aside an execution issued by the 
administrator, executor, wife or friend of a deceased justice, 
where the transfer was delayed, and application pressed in vin- 
dication of constitutional rights thus interpreted. 

We are not able to sanction such an interpretation of the 
provision which secures every one a trial, though speedily and 
without delay, because it must be conformable to the laws ; 
and no private person is invested with power, authority, or 
jurisdiction to issue writs of summons, execution, or other 

Such a construction, instead of securing would put our lives, 
liberties and properties to all the uncertain hazards of violence, 
fraud and chicanery of the powerful and the cunning, when 
combinations alone might afford adequate protection in a race 
and contention, for the custody and possession of the records 
and indicia of office. 

We should find difficulty in distinguishing between an execu- 
tion, or a capias^ or summons, issued upon these principles and 
under such circumstances. 

We cannot look to or derive any powers from the law organ- 
izing the municipal court with a judge, a clerk, a seal, and a 
jurisdiction, and still bring its officers and their acts within the 

JUNE TERM, 1856. 351 

Newkii-k i'. Chapron. 

general provisions of the laws in relation to the judiciary after 
the repeal of the court and the abrogation of its jurisdiction; 
for in relation to such powers and acts, under the repeal they 
become private and unofficial, both in their acts and persons. 
We therefore look alone to the new powers granted in the repeal- 
ing law. 

I speak not here of a total destruction of all remedy. It is 
objected to this delay of forty-two days, that if the legislature 
may suspend the right and remedy one day or forty-two days, 
they may do so forever. But such a case as the latter is not 
before us. And we must not forget that there is, or confound, 
the distinction between the regulation and the total destruction 
of right and remedy. The latter will never be intended, an 
such was the ruling of this court in Bruce v Schuyler et al.,4: 
Gil.R. 270, e^ ^e^-., where the power of the auditor to complete 
a sale of land for taxes, was so far sustained, as to enable him to 
convey after the repeal ot" the act under which he sold, there 
being no provision in the repealing act enabling another to 
do so. 

This principle is constantly applied, in analogy, to sheriffs 
and constables, who have power to sell after levy, although the 
writ may expire, or their terms of office. But this principle 
may not include the transaction of new business, where no per- 
sonal right or property has accrued or attached. Hence we find 
special acts or general provisions enabling ex-sheriffs to com- 
plete the collectioji of taxes, &c., and clerks still to recover 
their fees in certain cases. 

So I understand the provisions of this repealing act. It 
might have been understood and contended that a simple repeal 
of the organic law of the court abrogated all the judgments 
and rights of suitors and officers, leaving no mode of enforcing 
the judgments, prosecuting the pending suits, or collecting fees. 
To obviate this difficulty and avert such mischief and injury, 
the business and jurisdiction of the court was transferred to, and 
conferred upon, the Circuit Court, and the clerk enabled to en- 
force the collection of his fees without expense, in the mode 
provided by law. A like provision was made for the completion 
of business in the hands of the high constable. 

It is, therefore, in no sense such an extreme case as the one 
put in argument, of a destruction of rights and remedies, and 
we need not discuss or decide upon such a case until presented. 
It is only a simple change of the court and officers, who are to 
administer the identical same remedy; and only with the delay 
necessary, to make the change or transfer from one court to the 
other. And we have shown, as we think, most conclusively, 
that such delay for such an object, can, in no sense or light be 

352 OTTAWA, 

Newkirk ■;; . Chapron . 

regarded as violate o£ a suitor's constitutional redress; — nor 
will it enable a mere private custodian of judicial records oflB- 
ci ally to issue process as clerk — and much less of a court not in 
existence — or for the Circuit Court, having another, as clerk. 

The next position assumed in the argument is, a power in the 
clerk, under the repealing act, to issue executions for his fees; 
and such executions would be regular, and sales under them 
valid, although the debt or damages of the partj might be 
included. For even should the inclusion of the debt or dam- 
ages with the clerk's costs, make the execution irregular, yet it 
would not be void; and so a sale to a third person would be 

This reasoning may be just and logical when based upon sound 
premises, but finds no legitimate conclusion from a false assump- 
tion upon which it is based. And that is, that the clerk had a 
right to collect his fees by execution. 

In what manner did the statutes authorise clerks and other 
officers to collect their fees? The answer is given in the Re- 
vised Statutes, ti. 249, Sec. 28, and p. 418, Sec, 40, as inter- 
preted and settled is Reddic v. Cloud- s Administrators , 2 Gil. 
R. 674, to be by certified fee bill, and not by execution. 

The special provision for executions in Rev. Stat., p. 186, 
Sec. 192, p. 262, Sec 7, and p. 311, Sec. 19, are not intended 
as remedies to the clerks or other officers, for the collection of 
their own fees, but for the collection of fines and costs generally, 
&c. The repealing act has conferred no power, but preserves 
by proviso the right to collect in the manner then provided by 
law, with free access to the records, for that purpose without 
charge. The fee bill, when intended to be used for a levy and 
sale, must issue as process of the court, run in the name of the 
people, and under sale of the courts, as writ of execution. We 
are by no means prepared to admit, what seems also to have 
been taken as granted in the argument, that the municipal clerk 
had, under that proviso, the power to issue these fee bills as 
executions. He might have obtained this process from the clerk 
of the Circuit Court, without charge to him it may be, upon fee 
bills made up by himself. 

The proviso may be better understood as rebutting and nega- 
ting the inference that, by repealing the court, the clerk's claims 
for fees were cancelled, than as intending to authorize him to 
issue his own process as clerk, or as a private citizen. The fees 
were still deemed to be due, as to an officer, and collectable by 
certified fee bill . But the statute, as it then stood and as it still 
remains, would not authorize an ex-clerk or one out of office to 
certify, address and seal the fee bill, as process. But such a 
process, not being before us, we need not decide whether a fee 

JUNE TERM, 1856. 353 

Newkirk v. Ch apron, 

bill so issued as process, would be valid as sucli. I have ad- 
verted to this view, to show that the provision was more obvi- 
ously intended as a preservation of his right to his fees, than to 
confer a power or fix a mode for their collection. 

We may admit for the purposes of this case, that the clerk 
could issue a certified fee bill for that purpose, and yet it by no 
means follows that, therefore, he might issue also, an execution 
for that or any other purpose, nor could he include the debt or 
damages in the fee bill. The clerk has no right to issue an exe- 
cution for the collection of his fees. That is the process of the 
judgment creditors, and the costs are included, to reimburse him, 
for what he is supposed to have paid to the officers, or if not 
paid, to enable him to pay the fees, for which he is liable to them. 
The officersi have no right, power or control over the execution. 
If the party will not advance his fees, or sue out his execution 
for their collection, for the benefit of the officers, to whom they 
belong, they may enforce the payment against each party from 
whom due, by this certified fee bill, vrhich becomes, for this 
purpose, like an execution against the cost debtor. 

The clerk took, therefore, no power under the 5th section, to 
issue an execution for his own costs. Giving the section the 
broarlest construction possible, and it could only authorize him 
to issue, certify and seal his own fee bills. 

But this view will prove too much. For if he has such power 
before the transfer of the records, can we limit it to the time of' 
the transfer? May not the power continue for his benefit, after 
the transfer and delivery of the records to the Circuit Court ? 
Such would also be the eff"cGt of the general power to issue exe- 
cutions, if it exist at all. And thus would be presented the 
uncertainty and confusion, growing out of a double clerkship, 
over the same records, one acting in the name of a court, func' 
tus officio, and the other in that of the existing jurisdiction. 
Aijd all this confusion and difficulty, this double-offircering, this 
galvanizing defunct tribunals, this official custodianism, must be 
encountered, reconciled and submitted to, upon the constitutional 
postulate, that a party has, in the prosecution of his remedy, a 
right, at any moment, and without delay, to any appropriate 
process for its enforcement ; and when there is no authorized 
official in a position to issue such process, it may be done by the 
temporary keeper of the records. 

We do not admit the correctness of either of the two main 
positions assumed, and upon which the arguments are made, 
and from Avhich, all the conclusions are drawn, and without ane 
or both of which, it is impossible to sustain this judgment. 

The act simply and absolutL'ly repealed the acts organizing 

ILL. EEP. — XVII. — 22 

854 OTTAWA, 

McConnell v. Biillhart. 

the court, abolished its jurisdiction, and transferred the whole 
to the Circuit Court. From thence, thereafter, only could exe- 
cutions issue. 

It is needless to speculate upon what may have been the effect 
of a simple repeal, without the provisions transferring the juris- 
diction and business, and preserving the rights and remedies of 
the suitors. Such difficulties may be fairly met when presented. 
But the present regulation of the parties' remedy, by a cha^.ge 
of the forums for its administration, is not to be confounded, 
although attended with a temporary delay, with its total aboli- 
tion, and under this perverted view, to overturn the salutary 
powers of the legislature to amend and regulate the remedies, 
or to substitute private for public authority, in the administra- 
tion of them. 

We, as much as any one, regret the great mischiefs, growing 
out of this oversight of authority, for this sale, and the great 
losses of improvements and disturbance of titles. As far as 
such considerations could, they have had their full influence with 
us, as inducements to weigh fully and carefully, and anxiously 
investigate, all the arguments and reasons offered for our con- 
sideration. And the result has been, that we are unable to fiud 
any legal foundation for the power claimed and exercised in this 

Judgment reversed and remanded. 

Judgment rei^ersed. 

Joseph A. McConmell, Appellant, T). Jacob Brillhart, 



To take a case out of the statute of fraurls, no form or language is necessary ; 
anything from which the intention may be gathered is sutflcient, whether in 
momoranda books, papers or letters. 

These must contain enough on their face, or by reference to fix the names of the 
parties,the interest or pi-opertyto be aflected,"and the consideration to be given. 

The party to be charged,or his agent, must sign the obligation ; and parol proof 
of agency will hold the party who acts by agent. 

The signing may be in the caption. In the body or at the end of an instrument. 

The contract must be signed with an intent to enter into it, be mutual, recip- 
rocal and upon good consideration. 

Such contracts are not subject to alteration, but mistakes in them may be cor- 
rected—or the identity of parties, or the quantity of an interest, may be some- 
times established by extrinsic facts. 

This was a bill filed in the Circuit Court of Stephenson county, 

JUNE TERM, 1856. 355 

McConnell v. Brillhart. 

in August, 1853, by Jacob S.Brillliart, complainant, against Jo- 
seph A. McConnell, to compel a specific performance. 

The bill sets forth that on the 1st day of July, A. D. 1853, 
one Robert McConnell, in consideration of the written under- 
taking of said Brillhart to pay him, the said Robert, and the said 
Joseph A., the sum of one thousand dollars by the 1st day of 
August, 1853, fcr the N. E. quarter of Section 25, and the S. 
E. quarter of Sec. 25 T. 26 N. , R. 7 E. , 4th principal meridian, in 
the State of Illinois, the said S. E. quarter belonging to said 
Robert, and the N. E. quarter to said Joseph, did make under 
his hand and seal a deed for said S. E. quarter, and placed the 
same in the hands of said Joseph A. , and directed him to deliver 
the same to said Brillhart, upon the payment of said $1,000, for 
said land, — $500 to said Robert, and $500 to' said Joseph. And 
said billcharges that said Joseph A. is now in possession of said 
deed. That on the 3rd day of August, A. D. 1853, said com- 
plainant tendered said sum of $1,000 to said Joseph A., for the 
use of said Robert and Joseph A., and demanded said deed, with 
which demand said Joseph A. refused to comply. 

Said complainant also alleges that on the 2nd day of July, A. 
D. 1853, said defendant was seized in fee of said N. E. quarter 
of said section, and that he entered into a written agreement to 
sell the same together with said S. E. quarter of said section, 
to said complainant for the sum of $1,000, and that he would on 
the 1st day of August, 1853, on the payment to him of $1,000 — 
five hundred dollars for the land of said Robert, and five hun- 
dred dollars for Joseph A. — make to said complainant a good 
and sufiicient deed for the same ; that on said first day of August, 
said sum of money was tendered and demand made for a deed, 
but that said defendant then refused to execute the same ; and 
said complainant avers his readiness to pay said sum ; and seeks 
discovery, on oath, as to matters above charged. 

And said complainant prays that said defendant be decreed to 
deliver to him the said deed so left in his hands ; and also to 
' ' specifically perform said agreement to convey the tract of land 
secondly above described." 

The defendant answered on oath to the matters charged in said 
bijl, and denies that said Robert McConnell placed in his hands 
the said deed in the said bill mentioned, with instructions to de- 
liver the same to the said complainant upon the payment of five 
hundred dollars to said defendant for the use of said Robert ; 
and denies having any such deed in his possession, or under his 
control, at the time this suit was commenced, or since : denies 
that any tender was made to defendant, of $500 on the 3rd of 
August, 1853, for the use of said Robert, inpayment for said tract 

356 OTTAWA, 

McConnell v. Brillhart. 

of land ; denies entering into a written agreement with complain- 
ant to sell him the S. E. quarter of Section 25, for $.')00, or that 
tender was made thereof on the 1st day of August, 1853, in pay- 
ment therefor. 

Defendant admits that he wrote a letter to Dr. Michener, of 
Freeport, 111., dated about the 17th May, 1853, in which he 
informed Dr. Michener that his and defendant's father's lands 
lying contiguous to his(Michener's) would be sold for one thou- 
sand dollars, and that said offer would hold good till July 1st, 
1853, but that said letter contained no description of the land 
referred to ; that about July 1st, 1853, defendant received a let- 
ter bearing date June 22, 1853, and signed by J. S. Brillhart, 
stating that the said Brillhart did not get the money he had ex- 
pected ; that a delay of about two weeks was necessary for him 
to get the money, and asking an extension of two weeks from the 
1st day of July, and saying that at the end of that time " he 
would be ready to fulfil his agreement for this land." 

That afterwards, on the 24th June, 1854, said claimant wrote 
defendant from Freeport, 111., that he had so arranged his busi- 
ness that he could pay at any time if said defendant Avould " come 
out" and make a deed to him ; and inquiring of said defendant 
when he would '* be out." 

That defendant wrote a letter in reply to the first of said let- 
ters, stating that " if said complainant would be ready by Aug. 
1st, 1853, perhaps this defendant would be out to Illinois pre- 
pared to make a deed for lands." 

Defendant denies that any written agreement was ever made 
between him and said complainant, and claims the benefit of the 
statute of frauds. 

That on the 9th of July, 1853, defendant received another 
letter from said complainant, stating that said complainant was 
*' ready at any time ; " advising defendant to execute a power 
of attorney to Dr. Michener, to make deed, saying that complain- 
ant desired a warrantee deed, ant) that he would if Michener 
made deed, give him a draft on any bank defendant might di- 
rect. And defendant prays to be dismissed, etc. 

To which answer complainant filed replication. 

Said cause came on for final hearing upon bill, answer, plead- 
ings and proofs, both written and oral ; and at April term, A. D. 
1856, said Court, Sheldon, Judge, presiding, rendered its decree, 
setting forth that it appears upon the proofs made in the cause, 
that defendant can make to the complainant a good title to a part 
of the land described in complainant's bill, to wit : the N. E. 
quarter of Sec. 25, T. 26 N., R. 7 E. 4 principal meridian, in the 
county of Stephenson, and State of Illinois ; and it appearing 

JUNE TERM, 1856. 357 

McConnell v. Brillhart. 

that the defendant did agree to convey said land to complainant, 
as stated in said bill, and that said defendant agreed to convey, 
or cause to be conveyed, the land above described, together with 
the said south-east quarter of said section belonging to one Rob- 
ert McConnell, for the sum of 1,000, and that said defendant 
was to have $500 from complainant for the land first above de- 
scribed, and that said complainant has in all things complied with 
the terms of said agreement ; it is therefore ordered, adjudged 
and decreed, that complainant, within thirty days, pays to the 
clerk of this court, for the use of the defendant, the sum of five 
hundred dollars, with interest from the first day of August 1853, 
also the further sum of thirty dollars for taxes, etc. 

And that if said Joseph A. McConnell shall, within thirty 
days, file his election, in writing, to cause a conveyance of both 
of said quarter sections to be made to complainant for the sum 
of $1,000, with interest, and thirty dollars to be applied for. 
taxes, etc., and shall within that time make conveyance to said 
complainant therefore, on said complainant paying to him said sum, 
then the said complainant shall, within thirty days, pay to said 
clerk, for the use of said defendant, said last named sums, and 
in default of so doing, shall not be entitled to any conveyance 

Upon the rendition of the foregoing decree, the said defend- 
ant prayed an appeal to the Supreme Court. 

The following written testimony was introduced. First, a 
letter addressed to one Dr. Michener, as follows : 

3ICCONNELLSVILLE, O., May 17, '53. 
Dr. Michener : 

Sir — My brother arrived home last week in jood spirits, and giving in his wild 
imagination a glowing description of your country. He informs me of the rapid 
growth and continued prosperity and advancment of that portion of our wide 

He also vrishes me to drop you a note informing you whether we would dispose 
of some lamd lying contiguous to yours, and on what terms, as a friend of yours 
desired the information. In the fii-st place, iveaxQ not eager to make sale, for I 
have serious thoughts of commencing improvements thereon the present sum- 
mer. Had itnotbeen owing to some indisposition, I would have arrived as early 
as this epistle, but cannotnowtellhowlongitwillbe, asl am troubled with the 
chills and fever, occasionally, but will endeavor tobrealvitup as early as possible 
Provided, however, any person sees Jit to give one thousand dollars for the half section 
and in forms accordingly, ONE OF US rvill go out immediately with full power to convey 
the same to the purchaser. Terms, cash in hand. Should this seem too steep for 
the buyer we will hold on, and if too low on our part, will abide the consequences. 

And this agreement (proposition) will hold good until the first of July. 
Yours, &c., 

To Dr. B. Michener. JOSEPH A. McCONNELL. 

858 OTTAWA, 

Mc Gonnell v. Brillhart. 

McCONNELLSViLLE, O., July 2, '53. 
Mr. Brillhart : 

Sir — We received your note on yesterday, and hasten to reply. We feel will- 
ing to extend the time you require, althoughit haskeptme at home during the 
past month awaiting your arrival, and do not feel like incurring much expense 
in order to effect a sale at this time. And I amunalle to tell whether you expec* 
to come again to Ohio, or look for ws to go out there ; but I think I shall go out 
to Illinois about the first of August, and if you will hold yourself m readiness, and 
let us know accordingly, I will go prepared to make convej^ance, &c. Perhaps 
you are aware my father has not received his patent for his part, but no doubt it 
is at Dixon by this time ; please write. 


Although not offered in evidence, the following letters from 
the complainant to the defendant are stated in their answer to 
be all that ever were received by the defendant, and show clearly 
that no agreement was completed. 

Stephenson House, Freeport, June 22d, '53. 
Mr, McCONNELL.EsQ. :— I have been to Ohio last week, but could not arrange 
my matters so that I could come and see you before I left. I did not get my money 
as I expected, but got checks which I had to send to New York to get indorsed* 
and as soon as they will be returned to me (which will be about two weeks) I will 
be there ready to fulfill my agreement for this land. This delay was unavoidable 
on my part, and hope you will extend the time about two wrecks from the first 
day of July. As soon as I will be ready I will let you know. Please and let me 
hear from you soon, and also if I can send a telegraph dispatch to j'ou, as it 
takes some time for a letter to go there. Yours, &c. , 


Freeport, III., June 24th, 1853. 
Mr. McOonnell : 

Sir — I wrote to you a few days ago that I would not be ready to pay you that 
money for your land by the first of July ; but my bu siness has made a turn so that 
I can pay you at any time, if you will come out and make a deed to me. I would 
like to hear from you, to know what time you will be out, so that I will be here 
when you come, Iwoulcl Mice to Icnowsoon, for I wantto build on it this fall, and 
would also like to get some broke in July, or as soonas 1 canhear from you. 

Yours respectfully, J. S. BRILLHART. 

Freeport, III., July 9, '53. 
Mr. McConnell : 

Sir — Yours of the 4th was received this morning, and in reply 1 would say that 
I am ready at any time. I should ihinkthe best way would be for you to send a 
power of attorney to Doctor Michencr, and then he could make me a deed. I want 
awari'antee deed. By so doing you would save me expense of coming out to 111. 
I intend to go to Iowa in a week or ten days. If I will go I will leave the money 
here for you, and if Michener will make me a deed I will give him a draft on any 
bank you may direct. I would like to improve the land this fall, or build a house 

jraE TERM, 1856. 359 

McComielli). Brillhart. 

at least. It is more than likely that I will come to Ohio iu five or six weeks, but 
if I will I shall leave the money, so that Dr. Michener can get it. Please 
answer soon. 

Yours respectfully, J. S. BRILLHART. 

Upon the hearing of said cause, the following oral testimony 
was introduced : 

Barah Michener. a witness called on the part of the complain- 
ant, testified that he was acquainted with the complainant and 
defendant ; that he has acted as agent for complainant, Brillhart, 
in negotiating with defendant, a purchase by complainant of 
defendant, and Robert McConnell, of land in Stephenson county, 
111.; that about the last of July or first of August, 1853, com- 
plainant informed witness that he had agreed to pay one thousand 
dollars for said land, and in his absence left that sum with wit- 
ness to pay defendant upon delivery of deed : that witness 
informed defendant that he was prepared to pay the money and 
receive the deed ; that witness showed defendant complainant's 
funds, to which he made no objection, but declared himself sat- 
isfied with them ; that the land negotiated for is the east half of 
section twenty-five, township twenty-six north, of range seven 
east, in Stephenson county, Illinois ; that he has seen letter 
dated McConnellsville, 0., May 17, 1853; that it was written 
by Joseph A. McConnell's witness ; that the land described in 
said letter is the same described in former answer ; that said 
letter was an answer to one written by witness to defendant : that 
complainant replied to McConnell's letter ; that defendat came 
toFreeport near first of August, 1853 ; that witness, as agent 
for complainant, tendered the defendant the sum of one thousand 
dollars for the land mentioned ; that defendant told witness he 
had brought his farther's deed along ; that Joseph A. McConnell 
told witness that the deed in his hands from his father to com- 
plainant, was for one of the quarters composing east half of 
section twenty-five, township twenty-six, range seven ; that wit- 
ness saw no other tender of money by complainant or his agent 
to defendant, except as before stated ; that at the tmie of the 
correspondence with McConnell, witness owned land contiguous 
to land above described. 

James Michener, a witness called on the part of complainant, 
testified: that he was acquainted with complainant and defend- 
ant ; that defendant showed him deed of south-east quarter of 
section twenty-five, township twenty-six, range seven east, made 
by Robert McConnell to complainant, and stated that Robert 
McConnell gave the same to him, and instructed him to deliver 
said deed to complainant, upon his paying five hundred dollars 
for the same. 

360 OTTAWA, 

McCounell « . Brillhart. 

The appellant assigns for error, that : 1st, the court erred in 
rendering decree for complainant, necessary parties to said suit 
being omitted ; 2nd, the court erred in rendering decree for a 
gpecific performance of part of the contract ; 3rd, the evidence 
does not sustain the bill ; 4th, the statute of frauds is a complete 
answer, as no written contract was proved ; 5th, the pretended 
contract was not mutual nor certain, either as to terms or descrip- 
tion of property ; 6th, such decree of said court was contrary 
to evidence ; 7th, such decree was contrary to law. 

HiGGiNs, Beckwith and Strother, for Appellant. 

U. D. Meacham, for Appellee. 

ScATEs, C. J. The leading principle that governs the case is 
one requiring contracts, or notes of memorandums of the con- 
tract to be in writting, and signed by the party to be charged 
therewith, or by some one by him thereunto lawfully authorized, 
under our statute of frauds and perjuries, which is a copy of the 
English statute. 

Cases have been excepted out of the statute, where parol con- 
tracts have been in part performed by payments, possession and 
improvements, but I do not propose to examine or discuss this 

Of cases within the statute, courts have been called upon to 
discuss every clause of it, and apply it to every variety of cir- 
cumstances and facts ; in ascertaining what sort cf writing is 
sufficient, what it shall express and show upon its face, as to 
parties, description of the property, terms, conditions and price, 
who shall sign it — principal and agent — what will constitute an 
agency, what is a sufficient signing, &c., &c. 

And 1st. There is no form of language necessary ; anything 
from which the intention may be gathered, as in other contracts, 
will be sufficient. 

2. Any kind of a ivriting from a solemn deed, down to mere 
hasty notes or memoranda in books, papers or letters, will 
suffice. Doty-w. Wilder, 15 111. R. 407 ; Johnson ^. Dodge, 17 
111. R., post ; Buckmaster v. Harrop, 7 Ves. Jr. R. 341, note 3 ; 
Clark r). Wright, 1 Atk. R. 12 ; 1 Humph. R. 326 ; 10 Ohio R. 
402 ; 2 Bibb R. 98 ; 4 Bibb R. 466 ; 15 Vermt. R. 685 ; 1 
John. Ch. R. 273 ; 13 Wend. R. 53 ; 1 Paige Ch. R. 434 ; 5 
Wend. R. 103 ; 15 Pick. R. 159 ; 10 Conn. R. 192. 

3. The writings, note or meuoranda shall contain on their 
face, or by reference to others that is traceable, the names of 
the parties, vendor and vendee, a sufficiently clear and explicit 
description of the thing, interest or property, as will be capable 

JUNE TERM, 1856. 361 

McCoiinell v. Brillhart. 

of identification, and separation from other of like kind, to- 
gether with the terms, conditions and price to be paid, or other 
consideration to be given. Barry v. Coombe, 1 Pet. R. 647, 
650 ; Doty v. Wilder, 15 III. R.' 407 ; Blagden^y. Bradbear, 12 
Ves. Jr. R. 466 ; 1 Atk. R. 12 ; Clinan v. Cooke, 1 Sch. and 
Leff. R. 31 ; Champion et al. v Plummer, 4 Bos. and Pull. R. 
252 ; Dock v. Hart, 7 Watts and Serg. R. 172 ; Pipkin?). James, 
1 Humph. R. 326 ; Anderson v. Harold, 10 Ohio R. 399 : 5 N. 
Hamp. R. 540 ; 1 N. Hamp. R. 158 ; Allen v. Roberts, 2 Bibb 
R. 98 ; 4 Bibb R. 466 ; 3 A. K. Marsh. R. 443 ; 6 B. Monroe R. 
100 ; 6 Gil] Md. R. 66 ; 9 Gill Md. R, 205 ; 15 Vermt. R. 685 ; 
1 John. Ch. R. 273 ; 13 John. R. 296 ; 5 Cow. R. 162 ; 1 
Paige Ch. R. 434 ; 6 Wend. R. 103 ; 15 Pick. R. 159 ; 16 
Maine R. 458 ; 10 Conn. R. 192 ;4 Watts and Serg. R. 221. 

4. The party to be charged, or vendor of lands, &c., or his 
lawfully authorized agent, shall sign it. 

5. A verbal or parol agency is sufficient for this purpose. 
Doty V. Wilder, 15 111. R. 407 ; Johnson v. Dodge, 17 111. R., 
post; Clinan v. Cooke, 1 Sch. and Leff. R. 31. (a) 

6. The signing will be sufficient in the caption, or body of the 
memorandum, or by a subscription to it. 10 Ohio R. 402 ; 1 
Pet. R. 647, 650. 

7. The contract or obligation must be signed with intent to 
enter into it, must be mutual, reciprocal and upon good or valid 
consideration. Dorsey v. Packwood, 12 How. U. S. R. 134 ; 
Anderson v. Harold, 10 OhioR. 402 : 1 Paige Ch. R. 434 ; 6 
Wend. R. 103 ; 21 Wend. R. 139 ; 1 Barb. Ch. R. 499 ; Get- 
man et al. V. Getman, 4 Paige Ch. R. 305; 16 Maine R. 458 ; 4 
Watts and Serg. R. 221. 

Contracts within the statute of fauds, are no more subject to 
change or alteration, or proof of their contents, &c., than other 
written contracts. Yet mistakes maybe corrected. 11 Ohio R. 
109. And the same degree of certainty, required in other writ- 
ten contracts, will be sufficient in contracts under the statute of 
frauds ; id certain esi, quod cerium reddi potest, is a maxim 
equally applicable to both. 

So a return on an attachment of a levy on '' all the right, title 
and interest in and to a certain piece or parcel of land, with the 
buildings thereon, situate in Columbia street, at the southerly 
part of Boston, and on one piece of land and the buildings 
thereon standing, being situate in Pleasant street in said Boston, 
which the within named Benjamin Huntington has to the estates 
before mentioned," was held sufficiently certain, and parol evi- 
dence might identify it, by showing that Huntington had but one 
piece on either street. Whitaker v. Sumner, 9 Pick. R. 311. 

The same exceptions to the general rule of the inadmissibility 

(a) Seeactof 1869,p.^ 

362 OTTAWA, 

McConnell'v. Brilhart. 

of parol to explain written contracts, will apply here. The in- 
tention is to govern, and latent ambiguities may be explained, if 
any exist. The court may, therefore, inquire into the circum- 
stances surrounding the parties, to gather every material fact 
relating to the person, who claims to be interested, and to the 
property which is claimed as the subject of disposition, for the 
purpose of identifying the person or thing intended or the quan- 
tity of interest, where a kowledge of extrinsic facts, can in any 
way be made ancillary to the right interpretation of the words 
used. 1 Greenl. Ev., Sees. 287, 288, note 3, p. 364. As a de- 
scription," one half of the farm on which he, said Moses, then 
dwelt," parol admitted to show the land he lived on. Doolittle 
t\ Blakesly, 4 Day R. 365 ; Venable v. McDonald, 4 Dana 
R. 386. 

Testing the contract presented in these letters, by the princi- 
ples laid do'vn, and we find nothing wanting to show a valid 
contract within the statute of frauds. 

Dr. Michener swears he wrote to plaintiff, as agent for de- 
fendant, to know whether he would dispose of (or they, as is 
insisted,) some land lying contiguous to his, and on what terms. 
The answer was a general ofi"er to sell — " if any person sees fit 
to give one thousand dollars for th^ half section, and informs us 
accordingly, one of us, will go out immeditately, with full power 
to convey the same to the purchaser. Terms, cash in hand. 
Should this seem too steep for theiz^^er, we will hold on ; and 
if too low on our part, we will abide the consequences. And 
this proposition will hold good until the first of July."' 

In his letter of July 2nd, plaintiff acknowledges the receipt, on 
the day previous, of defendant's acceptance of his offer and 
terms by letter. Their subsequent letters fully show the same, 
and that the 1st of August was fixed upon for the day of pay- 
ment and conveyance. 

Two objections are urged against these letters, for ^want of 
certainty in vendors, and in the description of the land. 

These objections are more specious than solid. There is n o 
uncertainty as to the other vendor, if there ^were two, as plain- 
tiff expressly refers to his father as the other, when he remarks, 
"perhaps you are aware, my father has not received his patent 
for his part, but no donbt it is at Dixon by this time." But as 
his father never signed the letters, he did not become a party to 
the contract. The plaintiff stands alone, as vendor of both 
tracts ; and accordingly brought a conveyance with him, from his 
father, to enable him to perform his agreement. He did sign, 
and is bound, and may not plead the statute for another, to 
avoid his own valid agreement. Having title to half only, de- 
fendant might, at his own election, rescind, or treat it as void, 

JUNE TERM, 1856. 363 

Alvord V. Ashley. 

and a fraud on him, in selling him land, to which plaintiff had no 
title. Bat he may, at his election, compel a conveyance of that 
part to which plaintiff has title, and resort to him for damages 
for the remainder. McConnell's heirs v. Dunlap's devisees, 
Hardin R. 41. 

Lastly, the description of the land as a half section contigu- 
ous to Dr. Michener's, is susceptible of identification by parol, 
by showing that the half section, described in the bill, had been 
entered by McConnells, father and son ; that it lay adjoining the 
only land owned by witness, or was the only lands owned by 
them adjoining any land of witness, as was shown in the cases in 
4 Day R. 205. and 4 Dana R. 336. This has been done, and we 
think the bill fully sustained by the proof. 

Decree affirmed. 

Nelson Alvord, Plaintiff in Error, v. Lauren N. Ashley, 
Defendent in Error. 


A. highway miy be esl:ablishedanclproyelbyprescription, by dedication, and by 

layinj^ out the same as directed by statute, (a) 
The public is an ever existing body, capable of talking as grantee for puljlic uses; 

and its intersts are a sufficient consideration to support the grant, which may be 

manifested by express or implied consent, from acquiescence iuthe user; and 

the user does not depend upon any fixed period of time. 
The dedication is a mixed question oflawaud facts, as also the quantity of land 

included by it, to be submitted to the. jury. . 

The actual use and repairing ofahig;hw:iy by the public, is e\'idence of its accep 

tance for such purjiose. 
A party will be estopped from denying a dedication by the acquiescence in it of 

his grantors. 
The jury may infer and find the width of a road, or a dedication of so much of it 

as was actually used. 

This was an'action of trespass, quare clausam. 

First plea, general issue. Second plea, public highway and 
supposed trespass within its limits. First replication to second 
plea, no highway. Second replication to second plea, trespass 
not in the highway. Issue found for plaintiff. Motion for new 
trial overruled, and judgment. 

Plaintiff's title to the close, and that the defendant took down 
the fence and diove across it from north-east to south-west, was 

The plaintiff requested the courtu to instrct the jury as follows: 

1st. If the jury believe from the evidence that the defendant 

{a) ^Vnte . 249 & notes & post 421 

864 OTTAWA, 

Alvord V. Ashley. 

broke and entered the quarter section mentioned in the declara- 
tion, and that the said quarter section was owned by or in pos- 
session of the plaintiiT at the time of such breaking or entry, 
then the jury should find the defendant guilty, unless the defend- 
ant has shown by proof that there was a public highway legally 
established and laid out across said quarter sestion, and that the 
defendant, in entering and passing across said quarter section, 
was all the time within the said road. 

2nd. The burden of proving a highway, rests upon the defend- 
ant, after it is shown that he broke and entered the close ; and 
it is also necessary to show by proof that the defendant in such 
case did not depart from the limits of said road while in said 

3rd. A right of way across lands ca n only be acquired in 
three ways : 1st, by prescription ; 2nd, by dedication ; and 3rd, 
by layino- out in the manner prescribed bylaAV. 

4th. In order to create'a right of way by prescription, it must 
be shown by proof that the road claimed by prescription has 
been used for twenty years uninterruptedly, adversely and con- 
tinuously under color of right, and that the owner of the land 
for twenty years has acquiesced in such use ; such owner being 
in a position to object if he saw proper. 

5th. Before the jury can find that the supposed roads, or any 
of them, exist, by dedication, they must believe from the evidence 
that the United States, while they owned the land through which 
the supposed roads passed, or the plaintiff since he has owned 
the land, intended to set apart and did set apart the ground over 
which said supposed roads run, for the use of the public for a 
highway ; and that the public accepted the same for a highway 
by some public authority authorized to accept it. 

6th. The mere act of making a fence along one side of the 
traveled track, by the plaintiff, when he owned the land on both 
sides of the traveled track, is not alone evidence of an inten- 
tion to dedicate the land to the public for a road. 

7th. If it is proved in the case that the plaintiff, soon after he 
purchased the land in question, notified the supervisor of roads 
that he did not acquiesce in the road running through said land, 
and forbid said supervisor -Prom doing work on said road, and 
fenced up a part or the whole of the said road, and ploughed up 
the traveled track, these are circumstances tending to rebut any 
presumption of an intentioa to dedicate the road to the public. 

8th. It is not competent for other persons along- the line of 
travel to except the road for the public, even if it was dedica- 
ted by the plaintiff ; the only way in which an acceptance can 
be made binding upon the plaintiff, is, that such acceptance 

JUNE TERM, 1856. 365 

' Alvord I'. Ashley. 

should be made by the County Commissioners' Court, or the 
County Court, or the commissioners of* highways, of the town in 
which the road lies. 

9th. A mere permission of the owner of the land for the pub- 
lic to pass across the land, will never ripen into a prescriptive 
right of way ; but such permission is only a license, and may be 
revoked at any time by the owner of the land. 

10th. The facts, that a public road has been used, traveled 
upon, worked upon, and recognized by, the public authorities, 
do never of themselves, establish a legal public highway. Proof 
of these facts merely furnish a presumption, that such is a regu- 
lar highway, but these circumstances only furnish a legal pre- 
sumption, which may be rebutted by the records, showing that 
such public road was not laid out in pursuance of the laAV. 

11th. Although it is not necessary, in the first instance, for 
the defendant, in order to prove the existence of a public high- 
way, to prove it by the records of the County Commissioners' 
Court, but the defendant may prove that the road was used and 
traveled upon by the public, and was recognized by the public 
authorities as a public road, and was worked by the supervisor, 
and this w^ould be sufficient, 7? rzwza/acze , to establish a public 
road ; yet when the records of the County Commissioners' Court 
are introduced by the plaintiff, which show a failure on the part 
of said court to comply with the provisions and requirements of 
the statute, then the presumption of the regularity of the pro- 
ceedings, arising from such use, travel and work bv the public, 
is rebutted, and the defendant is then bound to show that the 
statute has been complied with, in every essential particular 
necessary to make it a valid road, under the law. 

12th. A public highway laid out under the law in force in 
1845, whose width is not defined and named on the record, is 
void. In 1845, the law required the County Commissioners' 
Court to establish the width of the ro-dd upo?i the record; and 
if the jury believe from the evidence, that in 1845, the County 
Commissioners' Court, upon the report of Alvoid and Elliot, 
failed or omitted to fix the width on the record, of the road said 
viewers recommended, this omission is fatal to the legal existence 
of that road. 

13th. Unless it is shown by proof that the road viewed and 
staked by Hawes, Roberts and Easterbrook, had a fixed, a deter- 
mined width, such road is void. 

14th. The commissioners of highways of the town of Eden 
had a right by law to ascertain, describe and enter of record 
the location of the road viewed and staked by Hawes, Roberts 
and Easterbrook, in 1830, if said road was not sufficiently 
described ; and unless the proof shows that the place where 

366 OTTAWA, 

Alvorcl V. Ashley. 

defendant broke and entered was within the limits of said road, 
as actually established, that road aifords no justification to 
defendant for such breaking and entry. 

15th. Under the law that was in force in 1845, when the 
County Commissioners Court had full power to vacate, upon 
petition in conformity to law, any State or county road in the 
county ; and if the jury believe from the evidence that said court 
in pursuance of a leo'al petition made an order vacating the 
roads across the land in controversy in the suit, then the roads 
so vacated would constitute no justification to defendant for 
entering upon the laud. 

I6th. Private property cannot be taken for public purposes 
without just compensation, or a waiver of such compensation. 

17th. No acts of other persons along the same line of travel, 
in fencing or building, can make such an acceptance of the roads 
as would bind Ashley ; nor can such acts prove a dedication on 
the part of Ashley. 

18th. In order to create a right of way either by prescription 
or dedication, the proof must show a continuous and uninter- 
rupted use of the same traveled track ; and evidence of travel 
sometimes in one track and sometimes in another track, such 
tracks being several rods apart, and sometimes one being used, 
sometimes another, such evidence does not show either prescrip- 
tion or dedication. 

19th. A right of way cannot be acquired by prescription as 
against the United States, over land owned by them. 

20th. A right of way by dedication cannot be created with- 
out some act or acts and declarations by the owner of the land 
avowing an intention to dedicate the ground for a public high- 
way, and an acceptance thereof by public authority empowered 
by law to accept of such dedication. 

The court gave all but the 8th, 13th and 19th, which were 
refused. To the giving said instructions and each of them, 
defendant objected. Objection overruled. 

At the request of the defendant the court gave the following 
instructions : 

1st. If the trespass alleged in the declaration consisted only 
in the defendant's driving his wagon and horses across the land 
described in the declaration in a highway or public road, and in 
taking down fences which had been erected across the said 
highway or road, they should find for the defendant. 

2nd. If the jury believe from the evidence that there was a 
road used by the public generally for the purpose of public 
travel across the land of the plaintiff, and if said plaintiff per- 
mitted the public to use said road for such a length of time 

JUNE TERM, 1856. 367 

Alvord V. Ashley. 

that the public accommodation and private rights would be 
materially affected by an interruption of the enjoyment, he 
could not legally fence the same up, and prevent the further use 
of it by the public. 

3rd. That if the minutes of survey do not show a road to 
be located in the place where it was actually staked and laid 
out, still, the staking and laying out must control in determining 
its location. 

4th. It is not necessary to prove the location of a public 
road by the minutes of survey or other written evidence, but 
the same may be proved by persons who were along and assisted 
in the location of the road, and saw the stakes, if any, set, and 
the place where the road was actually staked out, is the place 
of the road. 

5th. The owner of land through which a road is about to be 
located, must in the first instance and as soon as the fact comes ■ 
to his knowledge, object to its location across his land. If he 
acquiesces in the location, opening and using it by the public, he 
thereby waives his claim for damages, and cannot afterwards 
shut up the road because his damages were not paid. 

6th. That if two of the viewers appointed by the County 
Commissioners' Court actually located and staked the center line 
of a public highway across the land of the plaintiff described 
in declaration, and if said road so located was accepted, actually 
worked by the public authorities, and used by the public (with 
the assent of the plaintiff) for such a length of time that the 
public accommodation and private rights might be materially 
affected by an interruption of the enjoyment thereof, then such 
assent and acceptance amounted to a dedication to the public of 
the use of said road, and said plaintiff, after such dedication, 
had no right to fence the same up and prevent the further use of 
it by the public. And although the county commissioners may 
not have established any width, yet, in determining the location 
and width of the road dedicated, the jury may consider all the 
facts proved in the case, the ranging of the line of fences on the 
road, the distance of said roads apart, the acts of the plaintiff 
in fencing along the north line of the road, if these things are 
proved and all other facts which tend to show an intention on 
the part of the plaintiff to give the public the road through his 

7th. If the centre line of a road was surveyed and located 
as mentioned in the last instruction, and if the plaintiff intend- 
ing to dedicate to the public lor a road a strip across said 
quarter section in the declaration mentioned, of the width of 
two rods on each side of the centre line, and if while intending 
to inclose a field on the north side of the road so that the south 

368 OTTAWA, 

Alvord V. Ashlev. 

line of the fence of the inclosure should be north of, parallel to, 
and t^vo rods distance from, the said centre line of said road, he 
did inclose said field, and by mistake or inaccuracy extended 
his fences on the east and west so far south, that said south line 
of fence either diagnally crossed the surveyed and located road 
or was a little south of the surveyed and located road, then the 
facts which would amount to a dedication of a strip four rods 
wide south of the fence, if it had been placed where plaintiff 
intended to place it, would amount to a dedication of a strip 
four rods wide south of the fence as it actually was, as long as 
the plaintiff permitted his fence to remain where he had thus by 
misfike or inaccuracy placed it, and while said fence so 
remained, the public would have the right to travel along the 
south line of said fence and within four rods of it, although 
traveleis might thereby pass over the land of the plaintiff which 
was south of the limits of the road. 

Each of said instructions for the defendant were given by the 

Verdict for plaintiff. Motion for a new trial overruled, and 
exception taken. The cause was tried by Hollister, Judge, 
and a jury. 

Glover and Cook, andLELAND and Leland, for Plaintiff in 

W . II . L . Wallace, for Defendant in Error. 

ScATES, C. J . We propose only to examine the instructions 
given for defendant, as errors apparent therein are sufficient to 
reverse this judgment. 

The court very properly instructed the jury that a highway 
could be established and proven by prescription, by dedication, 
and by laying out the same in the manner provided by the 
statutes. 2. Greenl. Ev. , Sec . 662 . 

Prescription for private rights and easements in the lands of 
others were, by the earlier decisions upon the old common law, 
made, times whereof the memory runneth not to the contrary. 
But gradually they began to conform to a fixed period of years 
which would bar a writ or action fortlie assertion of title, (see 
Angcll on Lim. 2, 3 , and notes,) in analogy to the statutes 
of limitation, and which was subsequently adopted as the rule 
in England bv statute 2 and 3 William IV, Cap. 21. Pre- 
scription on twenty years' possession had become a fixed princi- 
ple under the statute of limitations. 21 Jas. I, id., p. 3 and 
note 2. For though not so in name, it was so in effect, as a bar 
of any action for the assertion and maintenance of the right. 

JUNE TERM, 1856. 369 

Alvoid V. AsMey 

The date for legal memory was first fixed from remarkable 
periods, and then by statute, West 1, (3 Ew. I,) Cap. 39, 
from 6th July, 1189, the first day of Edward I's reign; by 32 
Henrj'" VIII, Cap. 2, it was shortened to sixty years, and to 
twenty years by 21 James I, Cap. 16 ; and distinctly recognized 
as a prescriptive right by 2 and 3 William IV, CC. 71, and 100 
Best on Presump. 87 to 100, (22 Law Lib. 68, &c. ;) Ma- 
thews on Presump. Ev. 309, 310 ; 2 Greenleaf Ev. Sec. 662 ; 
Ang. on Lim., pp. 11 to 14. So we make prescription in effect 
correlative with the bar of a real action to recover the land, or 
of a right of entry upon it. I will not here discuss what effect 
the shorter periods of limitation may have in reducing this 
period of prescriptive right by analogy. 
We come to the question of dedication. 

We have said in Warren v. Trustees of Jacksonville, 15 
111. R. 240, that dedictations that may be made without writing, 
are not within the statute of frauds ; that the public community is 
an ever existing body, capable of becoming and taking as 
grantee for public uses, and its interests are a sufficient consid- 
eration to support the grant. The mode is immaterial ; the real 
thing is the grant or dedication which may be manifested by 
express or implied consent, from acquiescence in the user. And 
these positions are, we think, abundantly sustained by the author- 
ities referred to ; and it does not depend upon any fixed period 
of time, — 2 Greenleaf Ev., Sec, 662, and notes, — but is a. mixed 
question of law and fact, and the particular circumstances of 
each case will be submitted to the jury, not only of the dedica- 
tion, but of the extent or quantity of land embraced in it. The 
voluntary use of a way by the public with the assent of the 
owner of the soil, may not of itself be sufficient to make it a 
public highway, and impose upon the proper public authorities 
the duty of. repair ; but when these are connected with proof of 
its actual recognition and repair by the proper public authorities, 
the whole facts should go to the jury, from which they might be- 
warranted in finding from such use, by the public, acquiescence of 
the owner, and recognition and repair by the proper authorities,. 
that the way is a public highway in the full sense of that term.. 
The fifth instruction is not in conformity to these principle. It 
contemplates an affirmative act or declaration of a more formal 
and solemn character than is essential ; for mere acquiescence' m 
its known and avowed use and repair as a highway by the publi 
and public authorities, may justify the inference under cir^ 
cumstances, and its actual use and repair will be evidence of its" 
acceptance for such purposes. 

The sixth instruction would exclude an act of the owner a3 
ILL. REP. — XVII. — 23 

370 OTTAWA, 

Alvord V. Ashley. 

evidence when taken alone, wliicli we think is a proper fact to 
go to the jury. 

The seventh instruction is too broad. Had it been confined 
to the defendant alone in its conclusion of rebuttal, and excluded 
any other acts or declarations of his than those recited, it might 
be correct. But he must be estopped by the acquiescence of his 
grantors, (even though it be the government, Diman v. The 
People, 17 111. R., post,) in which case the act recited could only 
repel the presumption fi'om his own act. 

Whether " mere permission of the owner of the land for the 
public to pass across it," amounts only to a " license, and 
may be revoked," is not a question of law in itself, but a fact, 
which, with the accompanying circumstances in this case of a 
recognition and repairing it by public authorities, should have 
been left to the jury. 

The ninth instruction is erroneous. 

The eighteenth is contrary to the principles laid down in 
Sprague v. Waite, 17 Pick. R. 315, 316, and Hannum et al. v. 
The Inhab. of Belchertowr<, 19 Pick. R. 313. 

The twentieth is obnoxious to the same remarks and prin- 
ciples laid down in respect to the fifth. 

The twelfth instruction would make the fixing of a width to 
the road an essential clement of the validity of their order 
establishing it. And so I should treat it upon direct appeal 
from that order, as I have shown in Morgan v. Green, 17 111. R. 
post, 395. But these proceedings are here collaterally attacked, and 
after a use and repair by the public of some twenty-three years. 
The viewinof and laying this road is cumulative, as is also that 
of a township road. The jury may infer and find a width ; 
they may infer and find a dedication of so much as was actually 
used, even extending to double tracks, as in 17 and 19 Picker- 
ing, and the conrt will intend that it was of the usual width 
fixed bylaw. Lawton v. Commissioners of Cambridge, 2 Caine 
R. 183. 

By act of 1827, Rev. Law 1833, p. 542, Sec. 12, roads were 
to b*e not less than thirty nor more than fifty feet wide, and this 
was the law in 1830, when this road was viewed. 

The act of 1845, Rev. Stat. p. 487, Sec. 33, fixed a maximum 
and minimum width for roads at sixty-six and thirty feet. Avithin 
which the County Court was authorized to vary different roads. 
I should not declare the location and establishment of the road 
void for an omission to enter for it a width when collaterally 
assailed, but would intend it to be not less than thirty feet, (a) 

Proof by plaintiff that he entered the close, and left it on 
and within the limits of the highway, might warrant the jury 

(a) post 397. 

JUNE TERM, 1856. 371 

Simons v. Waterman. 

in inferences that he had not departed from it in crossing the 

The first and second instruction ■would restrain and forbid 
the jury from drawing legitimate conclusions as inferences from 
facts in evidence. 

We need not comment upon the evidence ; the cause should 
be submitted to another trial. 

Judgment reversed and cause remanded. 

Judgment reversed. 

Nehemiah SmoNs, Plaintiff in Error, v. John S. Waterman, 
Defendant in Error. 


It is erroneous to exclude from the jury, evidence which tends to show that 
a plaintifl', by whatever name he sues, is aot the person holding the legal in- 
terest in the notes sued on. 

This suit was originally commenced before a justice of the 
peace in Kane county, by the defendant in error against the 
plaintiff in eiTor, and judgment entered in favor of the defendant 
in error for $88.46, from which an appeal was taken to the Cir- 
cuit court of said Kane county. The venue was changed to 
DeKalb county. 

At the October term of the DeKalb Circuit Court, a jury was 
waived and the cause submitted to the court for trial, and the 
issue found for defendant in error, and his damages assessed at 
$97.66, and judgment rendered thereon. J. G. Wilson, Judge, 

The bill of exceptions shows that on the trial the defendant 
in error offered in evidence two promissory notes, to wit : 

<i $42.72. Sycamore, November 3, 1852. 

One day after date, — promise to pay the order of J. S. & J. C. Water- 
man, forty-two and 72-100 dollars, value received, with interest at ten percent. 


Indorsed on back thereof, 

" Pay J. S. Waterman, 

J. S. & J. C. WATERMAN." 
' ' $33.00. 

Sixty days after date, for value received I promise to pay J. S. Water- 
man, or order, thirty-three dollars, with interest at ten per cent. 

' ' Sycamore, Nov. 23, 1852. NEHEMIAH SIMONS. ' ' 

372 OTTAWA, 

Simons v. Waterman. 

To whicli evidence the plaintiff in error objected, which objec- 
tion was overruled, and the opinion of the court excepted to. 

The plaintiff in error offered to prove that the name of the 
plaintiff was John C. Waterman, and that J. S. Waterman, to 
whom the notes were delivered, was James S. Waterman, which 
was objected to by defendant in error, and the objection sus- 
tained, and the opinion of the court excepted to. This was all 
the evidence given. 

A. C. Allen, for Plaintiff in Error. 

A. M. Herrington, for Defendant in Error. 

Skinner, J. This action was commenced before a justice of 
the peace and appealed to the circuit court, where judgment 
was rendered for the plaintiff. 

On the trial the plaintiff read in evidence two promissory 
notes executed by the defendant — one payable to " J. S. and J. 
C. Waterman, " and assigned by them to " J. S. Waterman ; " 
the other payable to " J. S. Waterman. " 

The defendant offered to prove that the name of the plaintiff 
was " John C. Waterman, " and that "J. S. Waterman, " to 
whom one of the notes was made and the other assigned, was 
" James S. Waterman. " The plaintiff objected, and the court 
sustained the objection. 

If the evidence tended to prove that the plaintiff, by whatever 
name he sued, was not the real person holding the legal interest 
in the notes sued on, then the evidence was improperly excluded. 
And if the plaintiff, who sued by the name of John S. Waterman, 
was in fact John C. Waterman, and that James S. Waterman, 
who of necessity was somebody else, was the person holding the 
legal title to the notes, then it would follow that the plaintiff 
had no right of action. 

The evidence, as we understand the record, tended to prove 
that the plaintiff was not the person having the right of action 
upon the notes, and therefore improperly excluded. 

Judgment reversed and cause remanded. 

Judgment reversed. 

JUNE TERM, 1856 373 

Bowers v. The People. 

Elijah Boweks, Plaintiff in Error, v. The People, Defend- 
ant in Error. 


To constitue the offence of resisting an officr, lie must be authorized to execute 
the process, which must be a legal one : audit must be so alleged and proved, 

The averment that the officer was in the due execution of his duty, as constable 
attemptingto serve a legal process, will sufficiently declare the validity of the 
process, and the official authority to serve it 

A'sentence to imprisonment in the Bridewell of the city of Chicago, is legal. 

At the January term of the Recorder's Court, of the city of 
Chicago, 1856, R. S. Wilson presiding, the following indict- 
ment was found : 

The grandjurors chosen, selected and sworn in and for the city of Chicago, of 
the county of Cook, in the State of Illinois, in the name and by the authority of 
the people of the State of Illinois^ upon their oath, present,that Elijah Bowers, 
lateof said city, on the twenty-first day of December, in the year of our Lord one 
thousand eight hundred and fifty-tive, in said city of Chicago,in the county and 
State aforesaid, in and upon one Michael Hickey, in the peace ofthe said people 
then and there being, and being then and there a public officer,to wit,a consta- 
ble , and being then and there in the due executionjof his duty as such constable, 
and being then and there attempting to serve a lawful process, did then and there 
unlawfully jknowingly and willfully resist , obstruct and oppose , and him , the said 
Hickey,actingassuch officer, he the saidElijah Bowers,did then and there beat? 
wound and ill-treat,contrary to the statute and against the peace and dignity of 
the same people ofthe State of Illinois. 

D. McILROY, State Attorney. 

The said Elijah Bowers was arraigned and plead not guilty ; 
and a jury having been impanneled, such proceedings were there- 
upon had, that said jury rendered a verdict against said Elijah 
Bowers. And thereupon a motion was made by defendant's 
counsel in arrest of judgment. And the court overruled said 
motion in arrest, &c. , to which decision of the court, overruling 
the motion in arrest, the counsel for defendant then and there 
excepted. And the court ordered that the said defendant, Eli- 
jah Bowers, be fined in the sum of one hundred dollars, and that 
he be taken from the bar ofthe court by the sheriff of Cook county, 
to the Bridewell of the city, and be delivered to the keeper of 
said Bridewell, who was required and commanded to take the 
body of said Elijah Bowers and confine him in said Bridewell 
in safe and secure custodv of labor, for the term of six months ; 
and that the said defendant pay all the costs of these proceed- 
ings, and stand committed to the custody of the said keeper until 
said fine and costs are paid. 

374 OTTAWA, 

Bowers v. The People. 

The defendant, hy tis counsel, alleges the following grounds 
of error in said record : 

1st. The indictment attempts to charge two supposed, sepa- 
rate and distinct offences, and fails legally to charge either. 

2nd. There is no sufficient and legal allegation of the official 
capacity of the supposed officer within the meaning of the laws. 

3rd. There is no legal or sufficient description of the sup- 
posed legal process attempted to be served. 

4th. The supposed process is not set out in the indictment, 
nor from what court it is issued. 

5th. The judgment and sentence are illegal and unconstitu- 

6th. The indictment is, in other respects, illegal and insuffi- 

7th. The overruling of the motion in arrest was illegal and 

AiiTDREW Harvie, for Plaintiff in Error. 

W. H. L. Wallace, District Attorney, for The People. 

Skinner, J. This was an indictment against Bowers for 
resisting an officer. The indictment charges that Bowers, on 
the twenty-first day of December, 1855, at Cook county, Illinois, 
in and upon one Michael Hickey, the said Michael Hickey then 
and there being a public officer, to wit, a constable, and being 
then and there in the due execution of his duty as constable, 
and being then and there attempting to serve a lawful process, 
did then and there unlawfully, knowingly and willfully resist, 
obstruct and oppose, and him the said Hickey, acting as such 
officer, beat, wound, ill treat, and so forth. 

The defendant below contends that the indictment is insuffi- 
cient for want of an averment that Hickey was an officer of 
Cook county, and becuuse it does not set forth or describe the 
process which he was attempting to execute when resisted. To 
constitute the offence of resisting an officer, the officer or person 
resisted must be authorized to execute the process, in the execu- 
tion of which he is resisted, the process must be a legal process, 
and this, to justify a conviction, must be alleged in the indict- 
ment, and proved on the trial. The offence consists in resisting 
or opposing the officer while acting in his official capacity. The 
writ or process which he is attempting to execute when resisted 
must have emanated from a court, or person having jurisdiction 
and authority to issue it ; and the officer must, at the time and 
place, be authorized in law to serve or execute the same. The 
averment that Hickey was in the ' ' due execution of his duty as 

JUNE TERM, 1856. 375 

McDonnell v. Olwell et al. 

such constable, "and "attempting to serve a lawful process" at 
the time and place resisted, includes the validity of the process ; 
and the averment that he was "then and there a public officer, 
to wit, a constable," and " then and there in the due execution 
of his duty as such constable," is an averment of his official 
capacity and jurisdiction to serve the process, A general aver- 
ment that the process was a lawful process, and the person 
resisted, 2^ public officer, authorized to execute the same, in the 
execution of which he was resisted or opposed, is sufficient alle- 
gation, both of the validity of the process, and the jurisdiction 
of the officer. To prove the accused guilty, the process must 
appear, on its face, to be a lawjul process, which might be law- 
fully executed at the time and place ; and it must appear that 
the officer resisted Avas authorized to execute it, and that the 
accused obstructed, resisted or opposed, the officer in executing, 
or attempting- to execute the same. Mc Quoid ■«. The People, 
3 Gil. 76. The indictment being sufficient, the court below 
property overruled the motion in arrest of judgment. The court 
sentenced the defendant to pay a fine of one hundred dollars, 
and to imprisonment in the Bridewell of the city of Chieage for 
six months. The defendant questions the legality of the sentence 
as to imprisonment in the Bridewell. This question has been 
settled by this court. Private Laws of 1851, 146, Sec. 50 ; 
Laws 1853, 147 ; Perry et al, -y. The People, 14 111. 496. 

Judgment affirmed. 

Charles McDonnell, Plaintiff in Error, v. James Olwell 
et al., Defendant in Error. 


An affidavit to a plea, in which the party states that he has a defence to the 
merits of the action, omitting the word ' ' good," is'sufficient, under the act 
regulating the practice in the Circuit and Common Pleas Courts of Cook 
County,and perjury may be assigned upon it,if the plea were wholly frivolous. 

The said act of 12tli l^'ebruary, 1853, was clearly within the constitutional power 
of the Legislature to iuact. 

This was an action of assumpsit brought to the Cook county 
Court of Common Pleas ; to which the defendant pleaded non- 
assumpsit, supported by affidavit of merits, stating that the party 
who inade it, was defendant in the suit, "and that he has a 
defence therein on the merits." 

On motion of counsel for plaintiff, the plea and affidavit were 
struck from the files, because of the insufficiency of the affidavit 

376 OTTAWA, 

McDonnell v. Olwell et al. 

to the defence on the merits. To which the defendant excepted. 
On motion of counsel for plaintiffs, default was thereupon entered 
and judgment was taken for the plaintiffs. 

J. M. Wilson, Judge, presided. The judgment was entered 
at the vacation term, in April, 1855. The defendant, below, 
brought error. 

Blackwell, Ballingall and -Underwood, for Plaintiff in 

Harvie and Tuley, for Defendants in Error. 

ScATES, C. J. There are but two questions presented in this 
case — 1st, the suflBciency of the affidavit of merits , and, 2nd, 
the constitutionality of the act of 12th Feb., 1853, regulating the 
practice of the Circuit and Common Pleas Courts of Cook county. 

The plaintiff pleaded the general issue, and made affidavit that 
he had " a defence therein on the merits," omitting the word 
" good" as contained in the phraseology of the act. 

We are not able to read the statute in a sense requiring defend- 
ant to swear to the goodness of his defence in the view, light 
or sense of making it successful, by sustaining it at all events 
upon the trial — but in the sense that he has really, truly, bona 
fide a defence to the merits, and which, under a plea to the mer- 
its, he ought to be allowed to present, and have investigated, 
and judgment passed upon its goodness in the sense of sufficiency 
as an answer to the action in bar, or partial bar of a' recovery. 

If defendants are required to swear to the goodness of 
their defences upon the merits, in the sense of sustainable suffi- 
ciency, few could, with a conscience void of offence, make defence 
at all, although circumstances of real controversy might exist, 
which would demand and justify an investigation on a defence to 
the merits. The act never contemplated that defendants should 
form such solid convictions and firm judgments in their own 
minds, of the sufficiency and goodness of the defence, as to swear 
to the legality and justice of its grounds. Many controversies 
involve counter explanatory facts, and principles of law, that 
can only be clearly known, understood and judged of, upon full 
investigation, and the final result. Where controversies of this 
character exist, in matters of contract, involving the legal suffi- 
ciency of the merits of the defence in doubt, and yet the party 
genuinely, truly, in good faith, believes the contract ought not to 
be enforced against him, and that the facts showing the grounds 
of his defence ought to be investigated, and adjudged according 
to law, surely the statute was not intended to cut him off with- 
out a hearing, because he does not, or cannot, conscientiously 

JUNE TERM, 1856. 377 

McDonnell v. OlweU et al. 

swear that the defence will prove " good" upon the trial. Where 
a plea or notice is put in, which is good in substance to present a 
defence upon the merits — accompanied by an affidavit of merits 
in the defence, it neces sarily includes" good" in the sense of a 
real, genuine, bona fide defence, such as would be adhiissible 
under the pleading, and, in contradistinction to its being frivol- 
ously or groundlessly done. It must be in this sense, and this 
alone, that we can understand a party when he swears he has a 
defence upon the merits. And, if knowingly false in this sense, 
we cannot do-ubt that perjury could be assigned upon it under 
the statute, w thout the word " good " being in it. The lan- 
guage imports the full sense without that word — and we are un- 
able to conceive any explanatory subterfuge, admissible as a legal 
answer to perjury under the general statement, which would be 
excluded by the additional " good defence" in the affidavit. 
We are, therefore, of opinion that the affidavit in this case is 

We have no reason to doubt the power of the legislature, 
under the constitution, to regulate the remedies, and practice in 
a part of the courts of general jurisdiction, to suit the exigen- 
cies of the public interest, by expediting the disposition of causes 
therein. The proposition implies a want of power in the legis- 
lature to adapt the forms of action, process, and practice in 
courts of certain localities, to the forms and modes best suited 
to the dispatch of business accumulating in them. This would 
seem to be more technically strict than might be required in the 
construction of the clause authorizing the organizttion of infe- 
rior courts in cities — which only restricts the power to an uni- 
form organization and jurisdiction," and which latter, peradven- 
ture, might be administered through forms of action, processes, 
and practice, differing from other superior courts of the State. 

The constitution has delegated the whole judicial power of the 
State to " one Supreme Court," (Art. 5, Sec. 1, ) with " original 
jurisdiction in cases relative to the revenue, in case of manda- 
mus, habeas corpus, and in such cases of impeachment, as nay 
be by law, directed to be tried before it," with " appellate juris- 
diction in all other cases," (Art. 5, Sec. 5); to " circuit 
courts," with " jurisdiction in all cases at law and equity, and 
in all cases of appeals from all inferior courts," (Art. 5, Sec 8) ; 
" in County courts" whose " jurisdiction shall extend to all pro- 
bate, and such other jurisdiction as the General Assembly may 
confer in civil cases and such sriminal cases as may be prescribed 
by law, where the punishment is by fine only, not exceeding one 
hundred dollars," (Art. 5, Sec. 18) ; and in " Justices of the 
Peace," who shall " exercise such jurisdiction as may be pre- 
scribed by law," (Art. 5, Sec. 27). The constitution has thu 

378 OTTAWA, 

McDonnell «. Olwell et al. 

conferred, defined and divided out this judicial jurisdiction — but 
has not prescribed the forms and modes in which it is to be exer- 
cised — and, consequently, uniformity is not, and cannot be made 
one of the requirements of the constitution ; unless jurisdiction 
is made to include it, and this would extend alike to each and 
all the courts. A construction of the constitution which would 
require the forms of action, processes and practice of all the 
courts to be the same, is wholly inadmissible. The constitutional 
power to regulate remedies, has, I believe, been universally and 
uniformly admitted, and supported by the courts. 

The case before us has been a mere regulation of the practice 
in the courts of one county, and clearly within the constitutional 
powers of the legislature to make. 

In Vanzant ?). Waddel, 2 Yerg. R. 260, new and additional 
remedies, confined to creditors of two banks, were sustained as 
constitutional. But that case, and the one before us, are very 
unlike the other cases cited in argument. 

In Wally's Heirs v. Kennedy, 2 Yerg. R. 554, the act provided 
for dismissing Indian reservation cases, where prosecuted for the 
use of another — and was, therefore, a particular, private, partial 
law, and not a general public law — and in its operation disvested 
private right by denying all remedy. 

So a special act authorizing the guardians of the minor heirs 
of Jones to sell the real estate descended to them, and to apply 
the proceeds to the payment of the debts of decedent, was held 
to be unconstitutional on the same ground, and for the additional 
reason that it was the exercise of judical power. Jones' Heirs 
V. Perry et al., 10 Yerg. R. 59. See also, 4 Yerg. R. 202 ; 5 
Yerg. R. 350. 

Yet a grant of power to a father to sell th e land of his chil- 
dren and put the proceeds at interest for the benefit of the infant 
owners, was constitutional. It is not the exercise of a judicial 
power — but ministerial and beneficial to those interested, by 
enlarging the power of others to do for their benefit what they 
lacked power and capacity to do for themselves. Rice et al v. 
Parkman, 16 Mass. R. 326. This may not, however, authorize 
the suspension of the Statute of Limitations in favor of a partic- 
ular individual or case, as decided in Holden v. James' Adm'r, 
11 Mass. R. 397. Nor does the creation of a special court for 
the determination of suits by a bank against her officers and 
other defaulters to it fall within legislative powers. Bank of 
the State v. Cooper et al., Appendix 2 Yerg. R. 599. So is a 
partial discrimination between citizens, by making an embezzle- 
ment of funds of a particular bank, or false entries by its offi- 
cers, agents or servants, felony in them, and not in others ; or 
in like cases of all banks and all persons, Budd v. The State, 

JUNE TERM, 1856. 379 

Newlan v. The President and Trustees of Town of Aurora. 

3 Humpli. R. 483, not witlim the constitutional power of legis- 

But we see no analogy between such cases and the case at bar, 
regulating the practice in the courts of one county, applicable to 
all suitors in those courts. 

Judgment reversed and cause remanded for replication to the 


Judgment reversed. 

Thomas Newlan, Appellant, x. The President and Trus- 
tees OF THE Town of Aurora, Appellees. 


In an action of debt for violating of a town ordiance, against selling liquor, in 
order to justify a recovery, it should be shown that the liquor had been sold, 
after the ordinance took effect. 

This was a suit brought by the appellees against the appel- 
lant, on 17th day of December, 1853, before a justice of the 
peace, to recover certain penalties for the alleged violation of 
alleged ordinances of the town of Aurora — for selling liquor — 
and brought by appeal and change of venue to the Circuit Court 
of Kendall county, and tried at September term, 1855, before 
HoLLSTER, Judge, and a jury. Judgment of $100 against 

Plaintiffs below proved " the sale by defendant, within the 
limits of the town Aurora, of whisky and beer, at various 
times,"(the proof does not show when.^ 

Day and Parks, for Appellant. 

R. G. Morton, for Appellees. 

Skinner, J. This was an action of debt, brought by the 
Trustees of the town of Aurora, against Newlan, to recover 
penalties for alleged violations of an ordinance of said town, 
passed June 30th, 1853, and providing : " that any person who 
shall sell within the limits of the corporation of the town of 
Aurora, any whisky or beer, or any other alcoholic or intoxi- 
cating drinks, in any qaanity, shall be fined for every offence 
twenty-five dollars." 

The bill of exceptions states, that on the trial, 'Hhe plaintiffs 

380 OTTAWA, 

Jones ^). Goodrich. 

proved the sale hj the defendant, within the limits of the cor- 
poration of the town of Aurora, of whisky and beer, at vari- 
ous times." 

It does not appear when the sales were made, and without 
some evidence tending to show a sale after the ordinance took 
effect, the plaintiffs in no view of the case could recover. The 
circuit court should therefore have granted a new trial, the 
finding of the jury against the defendant being without evidence 
to justify it. (a) 

No opinion is expressed as to the validity of the ordinance. 

Judgment reversed and cause remanded. 

Judgment reversed. 

William Jones, the younger. Appellant, v. William 
Goodrich, Appellee. 


"Where the proof taken in a case, shows that the action accrued to a person, who 
was doing business in the name of Goodricli & Co., and that the defendant 
knows that tlie business was for the benefit of Goodricli alone, proof of the 
account in the name of Goodrich & Co., will sustain an action in the name ol 

A person has a right to adopt the style of a firm, for business purposes. 

The opinion of the court gives a statement of the facts. 
Judgment by Manniere, Judge, upon the verdict of a jury, 
at November term, 1855. 

Wilkinson, Doav and Pearson, for Appellant. 

Cornell, Jamison and Bass, for Appellee. 

Skinner, J. This was an action of assumpsit, by Goodrich, 
against Jones. Verdict for plaintiff, and motion for a new trial 
overruled. ♦ The appellant assigns for error, that the circuit 
court refused a new trial, and admitted in evidence the deposi- 
tion of Birney, taken on the part of the plaintiff. The evidence 
shows, that Jones was in the employ of Goodrich, who was doing 
business under the style of " Goodrich & Co. ;" that Goodrich 
advanced to him while so employed, moneys beyond what he 
was entitled to for his services ; that the items of the moneys so 
advanced, were charged to Jones in the books of Goodrich, kept 
in the name of" Goodrich & Co.;" that Jones was familiar Avith 

[a] Barnett vs. Newkirk, 28 m. E. 62; Teft VS. Size, 5 Gil. R. 432 & notes. 

JUNE TERM, 1856. 381 

Castle et al. ■;;. Judson et al. 

the books, examined the account, and made no objection to its 
correctness. The proofs seem to us sufficient, to justify tbejurj 
in finding that Goodrich had no partner, and that the money 
was due from Jones to him alone. The deposition of Birney, is 
accompanied by a copy of the account against Jones, taken 
fi'om the books of Goodrich, with which Jones was conversant, 
and which were kept in the name of " Goodrich & Co. " 

The deposition proves this account and it is objected that the 
same is irrelevant to the issue, because the account is between 
"Goodrich & Co.," and Jones, and because the proof of it 
establishes an indebtedness to a firm doing business under the 
style of " Goodrich & Co. " and not a debt to the plaintiff. 

This would be a good objection, were it not proved that the 
plaintiff had no partner, and adopted for business purposes, the 
style of " Goodrich & Co. " This he had a right to do, and was 
not estopped thereby from proving that he alone was the real 
party legally interested, and the only representative of " Good- 
rich & Co." " MoUer v. Lambert, 2 Campb. 518 ; Teed -y. 
Elworthy, 14 East. 210 ; 2 Greenleaf Ev. 278. 

Judgment affirmed. 

Edward Castle et al., Plaintiffs in Error, x. William D. 
Judson et al. , Defendants in Error. 



To entitle a party to a default at a vacation term, under the practice act o 
1853, service of the declaration and rule to plead must be made ten days be- 
fore the term. 

If a party shall plead, demur, or enter a motion in a cause, though filed after 
the rule to plead had expired, if not placed in default by order of the court, 
he will be in time ; and the plea or motion will stand for answer or hearing. 

An affidavit of merits tiled with a plea need not be in the express words used 
in the practice act. 

The iour days' notice required to be given forthe hearing of a motion, if the 
motion is not reached for hearing, will stand good for the particukr matter 
without a renewal of it. Pleadings will also stand for hearing from term to 
term in like manner. 

This was an action of assumpsit, brought by the defendants in 
error, and returned to the Cook County Court of Common Pleas, 
at vacation term for June> 1854. The declaration was filed on 
the 17th of May preceding. On the sixth of June the plaintiffs 
in error, ( defendants below, ) filed a plea of the general issue, 
also a plea of partial failure of consideration ; and, third, a like 
plea, alleging that the indorsees of the notes sued on the plain- 

382 OTTAWA, 

Castle et al. v. Judson et al. 

tiffs in the action below, had notice before assignment to them. 
To which one of the defendants below made affidavit that he had 
a just and legal defence to the action, to the amount of two 
hundred and thirty-one dollars and ninety-nine cents, which 
should be deducted from the said claim mentioned in said plain- 
tiffs' declaration. On the eighth day of June, at said vacation 
term, on motion of the plaintiffs, the Court of Common Pleas, J. 
M. Wilson, Judge, presiding, ordered, that the pleas be stricken 
from the files for want of a sufficient affidavit of merits, and that 
a default be taken and entered for want of a plea ; and pro- 
ceeded to render judgment for the amount claimed, and for costs. 
The defendants below sue out this writ of error. 

DeWolf and Daniels, for'^Plaintiffs in Error. 

G. Goodrich, for Defendants in Error. 

ScATES, C. J. The defendants instituted this action in assump- 
it, to the June vacation term of the Cook County Court of 
Common Pleas, and counted on a promissory note, made by 
plaintiffs, payable to their own order, and indorsed by them to 
defendants, and also upon the common counts. Plaintiffs filed 
three pleas : First, general issue ; second, a partial failure of 
consideration in this, that note was given for goods bought of 
defendants, which they failed to deliver ; and, third, a partial 
failure, in the non- delivery of goods bought of third persons, for 
which the note was given, and of which defendants had due 

With these pleas plaintiffs filed an affidavit of Castle, in which 
he states that he has "just and legal defence to th3 said plain- 
tiffs' (defendants') action, to the amount of two hundred and 
thirty-one dollars and ninety-nine cents, (the amount set forth in 
the two pleas of partial failure, ) and which said sum of two 
hundred and thirty-one dollars and ninety-nine cents should be 
deducted from the said claim mentioned in said plaintiffs' (de- 
fendants') declaration." 

These pleas were " stricken from the files of the cause, for 
want of an affidavit of merits to their defence herein ; " and, 
upon this state of facts questions are presented, involving a con- 
struction of the several provisions of the act of 12th Feb., 1853, 
regulating the practice in the Circuit and County Courts of Com- 
mon Pleas of Cook County. 

There are four other causes now before us, involving construc- 
tions of different provisions of this act. Although this record 
does not call for adjudication upon these several questions, yet 
we may find it conducive to a full and clear interpretation of 

JUNE TERM, 1856. 383 

Castle et al v. Judson et al. 

the true intention and meaning of the legislature, to notice all 
the objections in one connected view. 

The constitutionality of the act has been challenged upon 
grounds, and sustained for reasons set forth more at large in 
McDonnell v. Olwell et al., ante, p. 375. The evils intended to 
be remedied were the great delays in reaching and trying causes 
in the several courts of Cook county, having general civil jurisdic- 
tion, occasioned by the great number of collection and other suits 
brought in those courts, accumulating upon the dockets there 
under the common practice and pleading, and without vacation 
terms with power to enter defaults, and render judgments thereon. 
The object of the act seems to be to facilitate and expedite 
the disposition and trial of causes brought there, so as to prevent 
unnecessary delay to suitors from the great accumulation of 
causes, upon frivolous defences, as is very manifest from the 
provisions of the fourth section, which authorizes " judgment, as 
in case of default," when the court shall adjudge a demurrer, 
plea or motion, to be frivolous. Acts 1853, p. 173. 

We should keep this object in view in interpreting the pro- 
visions of this act, and give it a liberal interpretation to accom- 
plish that end. 

The act partially restores the common law practice, by author- 
izing vacation terms in which defaults may be taken, and judg- 
ments be entered. But it is modified by limiting the rights of a 
party to a default and judgment, to a hearing for that purpose, 
before the judge or court in vacation. In addition to the power 
to hear motions for defaults and enter judgments thereon, and 
to hear demurrers and other preliminary questions, to bring 
causes to issue, and to render judgments, as in case of default, 
when these are deemed frivolous, it is authorized by agreement 
of the parties, (Sec. 5,) to try causes and enter judgments. 
And for this purpose it may summon a special jury from the by- 
standers, (Sec. 4,) and assess damages on defaults without a jury, 
(Sec. 6). Yet the judge has power, by order, to cause both 
grand .md petit juries to be summoned to such terms, (Sec. 16). 
There are various other provisions providing for judgment liens 
— chancery causes, writs of error land appeals, continuances of 
issues at trial terms, creditors' bil s and attachments — and all 
seem to point to one object, and that is the disposition of all 
business at vacation terms, except issues at law, which are clearly 
designed to be made up for trial ; and, if not tried by agreement, 
sent to the trial terms, with a preference over all other business, 
(Sec. 1). 

Having presented this general outline of the provisions of the 
act, tending to establish and carry out the object assumed, we 
feel assured that an easy solution will be found for all the diffi- 

384 OTTAWA, 

Castle et al. v. Judson et al, 

culties raised upon the construction of the 2nd, 3rd and 14th 
sections, and every apparent discrepancy reconciled. 

The third section has exclusive reference to vacation terms, 
and although any kind of action may be brought to such terms, 
and defaults taken at them, yet plaintiffs must serve a copy of 
the declaration and rule to plead as at common law, to entitle 
them to ask a default. The service of the declaration and rule 
must be made ten days before the term, like a summons. 

When the party has complied with these provisions, he stands 
in a position to ask a default ; and this would be his right, 
unless, before it is asked, the defendant should have taken some 
step to prevent it. What may that be ? It is contended — and 
seems to have been adopted in practice — that a plea,^demurrer, 
or motion must be filed before the expiration of the day named 
in the rule to plead ; and will not be allowed or received after- 
wards, although filed before any motion is made for a default, 
or other step taken. This seems to be one step towards a lit- 
eral interpretation of the statute. There is nothing in the 
statute to prevent the giving a rule to plead, which may expire 
at a subsequent day of the term, although the service of it with 
the declaration must be made ten days before the term. If 
so, — reading the statute literally, — the defendant must," before 
the expiration of said ten days," — the ten days' service before 
the term — plead. This would in all cases require a plea before 
the commencement of the term, and before the expiration of the 
rule, where it fixed a day subsequent. And this literal strict- 
ness would be as applicable to all other kinds of actions as to 
those " founded on a contrast." A strictness of interpretation 
and practice which may prevent delay and cut " off frivolous 
defences, should be sustained, and is promotive of public justice. 
But beyond such ends, I find no reason in its support, and can 
foresee that much injustice and oppression may grow out of it. 

Under general or special rule days, by the common practice, 
I have never known a plea rejected or sticken from the files, 
though filed after the rule expired, if done before any further 
step or motion in the cause.(a)SoI understand the special rule 
authorized by this section to be entered with service of it ten 
days. The defendant does not stand in default, simply by the 
expiration of the rule, but may at any time be put in default by 
order of the court, if so ordered before plea filed. This will 
accomplish all that is designed, as I think, and all that is desir- 
able to prevent delay. Such are the mutual rights of the 
parties under this act, up to the time of moving for default. 

What then, will answer the motion and prevent a default? 
First, I answer, pleas of a dilatory character. It may be by 
plea in abatement, demurrer, or motion to quash, as enumerated 
in the act, or I might add, for a continuance for want of copy 

(a) But see Flanders vs. Whitaker, 13 111 .R. 707 ; Cook vs. Forest, 18 Id . 581 . 

JUNE TERM, 1856 385 

Castle et al. «. Judson et al, 

of instrument or account sued on, &c. ; and secondly, it may be 
by plea to the merits. If these are not adjudged frivolous, they 
must be answered, and a default cannot be entered. All kinds 
of actions, as I have said, may be brought to vacation terms, 
defaults entered, damages assessed by a jury, (see Sec. 4) or 
by the court, (see Sec. 6) and judgments rendered, unless 
arrested by plea, demurrer, motion, &c., not adjudged frivolous. 
But in passing upon this characteristic of a plea in bar to the 
merits, I cannot admit an unlimited or discretionary judgment 
of it, as mere matter of fact or opinion. So far as the act 
authorizes, the court may go. To facilitate and expedite the 
collection of debts, the act has introduced a distinction between 
actions arising or founded upon contracts, and other causes of 
action. In the former, the plea must be supported by an affida- 
vit "that he believes he has a good defence to said suit upon 
the merits." For want of this, a plea in bar may be treated as 
frivolous ; while at the same time, a plea in abatement, demur- 
rer, or motion to quash, will be heard and examined upon their 
merits before they be so adjudged. All pleas in bar, import 
merits in the defence ; yet some, like the general issue, disclose 
no particular fact or ground to enable us to judge of the char- 
acter of their merits. The affidavit is therefore intended to 
inform and satisfy the court of the existence, in truth, in fact, 
in good faith, of a real defence existing according to such facts 
as would be admissible under such a plea. Do we subserve the 
ends of public justice, and carry the legislative intent into 
effect, by adhering literally to the phraseology of the act ? 
The legislative phrase has i-ts equivalents in other language, 
and the affidavit before us is more than equivalent. I do not 
deem the exact language of the act indispensable. No reason 
exists, as in actions of slander, for holding the party to the 
exact words and phrases. Here the party SAvears he has a 
"just and legal defence," to the amount of $231.99, and that 
that sum should be deducted, for a failure of the consideration, 
to that extent. Such a defence is equal, and, it seems to me, 
stronger, than the assertion merely of a "good defence ^^ 
"upon the merits." This affidavit is full and sufficient under 
the third section, and the pleas should not have been stricken, 
from the files. The legislature characterizes, in the 14th sec- 
tion, this affidavit as an "affidavit of merits " merely, " as- 
hereinbefore provided. " The supposition that the affidavit in 
the third section was an essential prescribed form, and not to 
be understood as a general provision for one of merits in any 
appropriate phraseology, has led to a supposed conflict of the 
provisions of that and the 14th section. I see no apparent con- 
flict or discrepancy between them. 
ILL. REP. — xvn. — 24. 

386 OTTAWA, 

Castle et al. v. Judson et al. 

The 14th section has simply extended that provision of the 
third section, which requires an affidavit of merits, to the plea 
in all suits arising on contracts, brought to any term, — trial as 
well as vacation terms ; and it may be, also, without any service 
of a copy of the declaration and rule to plead, as is required at 
vacation terms. 

It amounts, in effect, simply to an emendation of the old 
practice at the regular terms, by requiring an affidavit of merits 
to a plea to the merits in suits on contracts. And doubtless 
with the same object — to facilitate and expedite collections, by 
putting all suits on contracts upon the same footing by cutting 
off pleas to the merits, which were without foundation in truth 
and fact, but wholly frivolous, and for delay merely. 

Indeed, this is the most essential change in the pleadings 
extending to the regular trial terms. The practice is a little 
changed by the action of the vacation terms, disposing of most 
matters of form, and preparing and sending a docket of issues 
to the regular terms, and giving preference to jury trials. 

There is another provision of this act which I think has no 
reference to regular or trial terms, and that is the four days' 
notice to be served on a party, to enable him to take up a 
motion, plea, or other matter, cognizable at a vacation term. 
This provision has not altered the rights of parties, changed 
the power of the courts, or the practice at regular terms. But 
parties may proceed as heretofore, yet so as not to interfere 
with preferences given in the disposition of jury trials. 

These notices are to be served four days before the term, 
regularly docketed and disposed of. But in case they are not 
reached at their return term, there is no provision requiring a 
repetition of a new notice for the same matter at a subsequent 
term. One notice, like a summons, will stand good for the par- 
ticular matter. Such seems to be the sense of the proviso to 
the third section. If defendant file a plea in abatement, demur- 
rer, or motion to quash, in vacation term, it shall be in order 
at that term, to dispose of it ; if filed in vacation, it shall be so 
in order at the next vacation term without service of notice. 

I have presented in one connected view these several pro- 
visions of the statute, because the meaning of the statute is more 
apparent and intelligible, taken all together. They may not be 
treated as obitur dicta _ in being presented here, as they are 
before us in the several cases of Iglehart -y. Pitcher, ante, 307 ; 
McDonnell -y. Olwell et al., ante, 375 ; and Cook -u. Forrest, and 
Greenleaf -y. Roe, post. 

Judgment reversed and cause remanded. 

Judii:ment reversed. 

JUNE TERM, 1856. 387 

Hanna et al v. Yocum. 

JogEPH S. Hanna et al.^ Plaintiffs in Error, «. CHiVRLES 
Yocum, Adm'r, &c., Defendant in Error. 


A plaintiff cannot crave oyer of a judgment pleaded. He admits the recovery 
by his demurrer to the plea ;tlie plea should be traversed. 

Profer can onlv be made ofcontracts, &c., in the power of a party to pro- 
duce ; notof records. 

The judgments of countycourts, are final and conclusive, as to all matters vrith- 
in their jurisdiction. And these courts have all the judicial powers, formerly 
vested in the probate courts, or probate justices of the peace. 

This was a suit brought on account for damages as laid in 
declaration, for $5,000. Declaration contained the common 
counts, by said plaintiffs in error against defendant in error. 

Defendant pleaded former judgment in bar, in this, that plain- 
tiffs filed their account December 13th, 1851, in the County 
Court of Peoria county, upon which account a trial was had in 
said court in October, 1854, upon which trial the said court 
decided that said account and claim was not due from said 
defendant to plaintiffs, and that the same should be disallowed 
and rejected, and judgment was given in favor of defendant, and 
that said County Court had jurisdiction. 

Plaintiffs crave oyer of the record and proceedings in said 
County Court, which is as follows : Gibson, Stockwell & Co. 
y. Estate of Therrygood Smith. Claim filed December 13th, 
1851, being an account. This day came the parties by their 
attorney, and also the administrator in person, and by his 
attorney, whereupon testimony was introduced, upon the hearing 
of which, the court said that the sum of $3,292.81, claimed as 
due from said estate, being a balance due upon said account, is 
not due to said claimants. It is therefore ordered by the court, 
that such claim be disallowed, and is therefore rejected ; " and 
upon such oyer, demur to said plea, which demurrer was over- 
ruled by said court, and which is the cause assigned for error 
on the record. 

This cause was heard before Posters, Judge, at November 
term, 1855, of the Peoria Circuit Court. 

Manning and Merriman, for Plaintiffs in Error, 

N. H. Purple, for Defendant in Error. 

ScATES, C. J. The plaintiff could not legally crave oyer of a 
judgment pleaded. He admits, by his demurrer, such recovery 

888 OTTAWA, 

Hanna et al. v, Yocum 

as is set forth in the plea. I£ that be not trae, as stated, he 
should have traversed the plea, by denying the existence of such 
record. Front patei per recordurn, I apprehend is not a profert 
in pleading, especially of a judgment of another court. Profert 
can only be made of contracts, &c., in the power of the party, 
to produce, and I apprehend, upon principle, could not, of records, 
for want of such power and control. If profert is not made 
when it ought to be, oyer cannot be given, but profert must be 
compelled by demurrer, and when unnecessarily made, does not 
still entitle the party to oyer. 1 Chit. PL 430 to 436, and refer- 
ences and notes. 

Not seeing the record through the oyer, there is nothing in 
the plea, showing a want of jurisdiction, but on the contrary, 
an express averment of jurisdiction, which is as matter of fact, 
admitted by the demurrer. 

County courts, though not of inferior, are of limited, juris- 
diction in many respects, but their judgments are final and con- 
clusive in all matters within them. Propst. v. Meadows, 13 111. R. 
167 ; Stone et al. v. Wood, 16 111. R. 177 ; Ralston et al. x. Wood, 
15 111. R. 159. See Obert?). Hammul, 3 Harrison R. 79 ; Crig- 
don's Lessee v. Astor, 2 How. U. S. R. 319. 

But I apprehend, the party is mistaken as to a want of juris- 
diction, in this case, on account of the amount of the demand. 
It is more than the probate justice of the peace had jurisdic- 
tion of, as a justice of the peace, under the Revised Statutes of 
1845, p. 427, Sec. 5, fromAvhich doubtless this idea is derived. 
But the 10th section of the same act, gave them, as probate jus- 
tices, " all the judicial powers usually exercised by former judges 
of probate." 

The Act of 1849, p. 65, Sec. 13, for the organization of the 
present courts, vested them "with all the powers and jurisdic- 
tion of the probate court, as now established by law," together 
with concui'rent jurisdiction to decree sales of land for payment 
of debts. These provisions are general, and made in general 
language ; and we must look further back into legislation for a 
more particular investment of jurisdiction. This we find in the 
Act of 1831, amending the act relative to Wills of 1829, which 
provides concurrent jurisdiction to any amount, in suits against 
administrators as such. Rev. Laws 1853, p. 656, Sec. 1 ; Acts 
1831, p. 191, See. 1. These are enumerated and repealed in 
Cap. 90, pp. 461 — 465, but the jurisdiction is rebestowed in the 
meaning, and by the language of the 10th Sec. of Cap. 85, p. 
427, as part of the " judicial powers usually exercised by for- 
mer judges of probate," and so recognized and adopted in the 
language of the Act of 1849, as part of " the powers and juris- 

JUNE TERM, 1856. 389 

The Illinois Central Railroad Company v. Cassell et al. 

diction of the probate court ,as now established by law." When 
the administrator is plaintiff, the jurisdiction depends on other 

Judgment affirmed. 

The Illinois Central Railroad Company, Appellant, v. 
Augustus Cassell et al., Appellees. 


A contract for wood " now delivered and being hauled and piled," " to be piled 
eight feet high, and deliv